Amending the CSIS Act
A special, all-party committee of the House of Commons, under the chairmanship of Blaine Thacker, M.P., has been established to review the Canadian Security Intelligence Service Act and the companion Security Offences Act.
As members of the Security Intelligence Review Committee, Parliament's and the public's watchdog on the Service, we hope to contribute to the parliamentary committee's deliberations by putting forward specific suggestions, set out in these pages, and by appearing before it as witnesses.
After five years of experience, we believe that the CSIS legislation has generally worked quite well. As we said in our 1987-88 Annual Report, we continue to believe that the appropriate model for security intelligence in Canada is:
A civilian agency whose mandate is spelled out in law rather than by executive order, with clear political and judicial control, and with independent review.
That is, of course, exactly what the CSIS Act was designed to create. Our suggestions are meant to improve the working of the Act, not to modify its basic design.
Ronald G. Atkey, P.C., Q.C.
Jean Jacques Blais, P.C., Q.C. Frank McGee, P.C.
Saul M. Cherniack, P.C., Q.C. Paule Gauthier, P.C., Q.C.
- The CSIS Mandate: “
Threats to the Security of Canada”
- Paragraph 2(d) (Domestic Subversion)
- Paragraph 2(b) (Foreign Influenced Activities)
- Overcoming Isolation
- Grievance Procedures
- Devil's Advocate
- Cabinet Decisions
- Financial Review
- Complaints Hearings
- Security Clearances
- Effect of Committee Recommendations about Complaints
- Access to Information and Privacy
- Canada Evidence Act--I
- Canada Evidence Act--II
- The Framework of Accountability
- Intelligence: Balancing Supply and Demand
- Foreign Intelligence
- Release of Information
- Human Sources
- Committee Reports and Statements
Amending the CSIS Act
The CSIS Mandate: “
Threats to the Security of Canada”
Everything in the CSIS Act turns on the definition of “
threats to the security of Canada” contained in section 2. During our term, we have become concerned about the scope and the wording of this provision.
Threats to the Security of Canada: paragraph 2(d) (Domestic Subversion)
In testimony to the Justice and Solicitor General Committee on December 17, 1987, the Chairman of SIRC, Ronald G. Atkey, speaking on our behalf, stated that the so-called counter-subversion mandate in paragraph 2(d) of the CSIS Act applied “
regardless of how unlikely [the activities in question] are to lead to violent revolution”. He added that “
most of the investigations carried out by the [then] counter-subversion branch were authorized either because of the suspected involvement of hostile foreign intelligence services or because of a danger of politically motivated violence”. In urging that the Counter-subversion Branch be disbanded, he indicated that the problem was one of proportionality.
With the closing of this branch, and the decision of the Solicitor General that active investigations in the field of counter-subversion would require his personal authorization, we believe that it is now time to urge that this part of the mandate be reassessed. It is our conclusion, in light of the evolving experience with paragraph 2(d), that it should now be repealed. Such a repeal would, of course, involve repeal of paragraph 21(5)(a), which deals with paragraph 2(d) warrants, as a consequence. We realise that there can be a real threat to security posed in any democracy from domestic sources. But we believe that other parts of the mandate offer adequate protection to the security of Canada.
- The present CSIS Act already distinguishes between paragraph 2(d) and other aspects of the mandate in providing a maximum time period of 60 days for judicial warrants granted under authority of this provision (paragraph 21(5)(a)). Therefore, the Act already recognizes that activities under paragraph 2(d) require special restrictions.
- In our 1986-87 Annual Report (page 36), we noted that in counter-subversion, groups are targeted most often under the criteria of undue foreign influence or politically motivated violence. These fears are the concerns of other paragraphs in the section 2 mandate.
- In 1987, the Solicitor General announced that the Counter-subversion Branch would be disbanded and that any retained files were to be transferred to the operational branches of the Service addressing the concerns noted in paragraph (b).
- We note that last year there were no groups that were subject to investigation solely under paragraph 2(d) (1987-88 Annual Report, page 13).
- The counter-subversion mandate has probably been criticized more than any other provision in the CSIS Act.
1. We recommend, therefore, that paragraphs 2(d) and 21(5)(a) be repealed.
Threats to the Security of Canada: paragraph 2(b) (Foreign Influenced Activities)
Paragraph 2(b) of the CSIS Act defines the following threat to the security of Canada:
foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person.
Before any activities fall within that definition, certain key characteristics must be present, four in Group A and four in Group B. They must be:
- foreign influenced;
- within or relating to Canada;
- clandestine or deceptive; and
- detrimental to the interests of Canada; or
- foreign influenced;
- within or relating to Canada;
- detrimental to the interests of Canada; and
- involve a threat to any person.
These requirements are conjunctive: all of them in Group A or Group B must be met before the Service can get involved. A final requirement must also be met, although it is expressed in the negative. As with the threats defined in paragraphs 2(a), (c), and (d), the Service can get involved with any “
foreign influenced activities” that include “
lawful advocacy, protest, or dissent” only if they are carried on in conjunction with any of the activities referred to in paragraphs (a) to (d). The key requirements listed above that help define the mandate of the Service are most ambiguous. They are not found in other Canadian legislation, and their use in the ASIO Act of Australia has also given rise to considerable controversy. We have had a great deal of experience with the mandate presently contained in paragraph 2(b), and we have concluded that it should be revised. The key requirements will be addressed in order.
The phrase “
foreign influenced” would cover foreign interest groups, political organizations, individuals, associations and corporations: any such groups or individuals are arguably “
foreign” simply because they are not Canadian. The verb “
influenced” was used rather than the narrower “
directed” employed in the Cabinet Directive defining the mandate of the Security Service of the RCMP.
Within or Relating to Canada
At present, whether the activities are actually carried on in Canada, are directed from Canada, or are conducted or directed outside Canada, they need only be said to be “
related” to Canada for the Service to satisfy the second requirement in paragraph 2(b). There are no criteria set out in the Act to help determine how much any particular activity must “
relate” to Canada before CSIS can take jurisdiction. So long as there is some “
reasonable connection” between the activity in question and Canada or its interests, this part of the requirement will be too easily met.
Clandestine or Deceptive
The basic notion of this characteristic relates to secrecy, concealment or threat. The precise meaning of the term “
clandestine” is uncertain. It may connote an element of underhandedness or male fides, but some dictionary definitions would support an interpretation that merely “
secret” activities may be “
clandestine”. To avoid any uncertainty, we propose that the term “
clandestine” be repealed and replaced with a word like “
surreptitious”, which more clearly connotes some element of underhanded behaviour. The meaning of “
deceptive” is clear; it seems to connote dishonesty in the sense that the person who is deceiving knows what he is doing or saying is false or intends to mislead by such falsehood. Where a foreign power “
surreptitiously” or “
deceptively” intrudes into Canadian national activities, the interference may be every bit as objectionable as espionage. The Service should be amply equipped to address this kind of interference in our national affairs.
Detrimental to the Interests of Canada
The most problematic part of paragraph 2(b) is the phrase “
detrimental to the interests of Canada”. It is not found in any other Canadian enactment. It is almost wholly subjective: no criteria are provided to offer any standard for determining what is “
detrimental”. Although it is true that Canadian statutes routinely employ such phrases as “
the national interest” or “
the public interest”, such formulations are deliberately used by Parliament when it wishes to confer maximum discretion upon some decision-maker. But this is hardly the kind of broad discretion that Parliament wished to grant to a security service which was required to maintain the principle of a “
delicate balance” between the need to acquire information and an individual's right to privacy. The recent national debate on the merits of the Free Trade Agreement illustrates that even well-intentioned, patriotic citizens can differ strongly on what is in “
the interests of Canada”. We propose that the phrase “
detrimental to the interests of Canada” be defined in the Act.
Involve a Threat to Any Person
There are fewer difficulties with this phrase, connoting as it does a genuine fear or apprehension of physical or psychological violence. Therefore, we propose only that the term “
threat” be modified by an adjective like “
serious”. This was the step taken by Parliament in response to similar concerns voiced in the context of the mandate contained in paragraph 2(c), relating to politically motivated violence.
2.We recommend that paragraph 2(b) of the CSIS Act be repealed and replaced by the following:
“foreign directed activities within or directly relating to Canada that are surreptitious or deceptive and that are detrimental to the interests of Canada or involve a serious threat to any person.”
Although this formulation of paragraph 2(b) is narrower, we believe that it will provide an adequate mandate for the Service. There is no attempt to limit the mandate to interference by “
unfriendly nations” only. Nor does this formulation require that the interference occur in Canada--activities occurring in our embassies abroad would be covered, for example, so long as they are “
directly” related to Canada. There is an implicit recognition in the proposal that foreign states may act through ostensible business organizations; consequently, the mandate would not be limited to actions conducted by foreign governments.
Unwitting” agents of influence, if such agents in fact exist, could not be targeted by the Service under this paragraph. However, foreigners who attempt to “
direct” such interference would clearly be subject to CSIS scrutiny. The addition of the modifier “
serious” to threat is designed to limit the definition while still recognizing that the threat could occur either in Canada or abroad (such as a threat to a relative in one's homeland).
We believe most emphatically that the phrase “
lawful advocacy, protest or dissent” must continue to limit this aspect of the Service's mandate as well as the entire definition of “
threats to the security of Canada”.
3. We also recommend that as precise a definition as possible of “
detrimental to the interests of Canada” be included in the amended CSIS Act.
Drafting legal definitions is an arcane art and so we will not attempt to suggest a precise definition of the phrase “
detrimental to the interests of Canada”. We will, however, offer wording which could form the basis for discussion by individuals representing all points of view during the forthcoming Parliamentary hearings, as follows:
detrimental to the interests of Canada” means activities which are foreign directed, are surreptitious or deceptive, and are directed toward:
- diminishing the sovereignty or territorial integrity of Canada,
- weakening Canada's military defences,
- harming Canada's international relations with any nation or organization,
- seriously endangering the lives, health or safety of Canadians,
- obtaining, illegally, or without proper authorization, any information or thing classified in the national interest by the Government of Canada, or
- the bribery, coercion, or corruption of Canadians in respect of activities falling within paragraphs a), b), c), d) or e).
We note that the Independent Advisory Team which investigated the Service in 1987 (the Osbaldeston Committee) recommended that “
the career paths of CSIS staff should provide for movement within both the security intelligence community and the public service” (page 17).
We believe that the Service's Analysis and Production Branch in particular would profit considerably if public servants from elsewhere in government, academics, or others with special expertise, could work with it. CSIS officers engaged in analysis and assessment also benefit by their ability to work in related agencies of government or universities.
Although we recognize that there would be a cost incurred in acquiring the extensive security clearances required by those who would rotate through the Service, we believe that the benefits would far outweigh the costs. CSIS believes that it already has the capacity to institute staff exchanges with the public service.
4.However, for greater certainty, we recommend that the CSIS Act be amended specifically to provide for the rotations by public servants and others with special qualifications through CSIS, subject to provisions that would safeguard the identity of employees engaged in the covert operational activities of the Service.
Under the CSIS Act, SIRC cannot deal with complaints that are subject to grievance procedures set out in the CSIS Act or the Public Service Staff Relations Act. The CSIS Act contemplates that grievances might be adjudicated by members of the Public Service Staff Relations Board (PSSRB). In some cases, for example those involving salary matters and the like, SIRC would have little interest or particular competence in a dispute before the PSSRB. However, in many other situations, SIRC might be vitally interested. For example, a grievance involving alleged insubordination could arise if a member of the Service were to disagree strongly with how the Service was complying with a ministerial direction in a sensitive area.
5.Therefore, we recommend that CSIS be required to give timely notice to SIRC in advance of all grievance hearings that are conducted pursuant to subsection 8(3) of the CSIS Act.
SIRC should be entitled to be briefed in advance by the Service and to attend any grievance hearing. In this way, SIRC may better determine whether issues arising in a labour relations context merit independent investigation in the discharge of SIRC's separate responsibilities.
The CSIS Act does not give SIRC any specific authority with respect to warrants. However, we have reported on warrants pursuant to our general duty to ensure that there is no “
unreasonable or unnecessary use by the Service of any of its powers” (section 40) and our responsibility to “
compile and analyze statistics on the operational activities of the Service” (subparagraph 38(a)(vii)).
In testimony to the Justice and Solicitor General Committee on November 20, 1986, Mr. Atkey discussed the fact that there was less statistical information concerning warrants available under the CSIS Act than had been available under the Official Secrets Act. He indicated his belief that parliamentarians are entitled to more of such information. Another member of the Committee, Jean Jacques Blais, noted that since it was the role of the Committee to review warrant affidavits and their concordance with the materials upon which they were based, SIRC will be in a position, eventually, to give broad assurances to Canadians that the Act is being followed. In our three most recent Annual Reports (1985-86, page 18-19; 1986-87, page 11, and 1987-88, pages 19 and 59) we have expressed our concerns about this matter.
Under the Official Secrets Act, generally, each warrant authorized only one covert technique against only one target, whereas one warrant under the CSIS Act can authorize the use of many powers against many targets. We do not think that aggregate warrant statistics under the present legislation are very helpful. Serious concerns about Canadians' privacy rights under the Canadian Charter of Rights and Freedoms prompt the following recommendation.
6.We recommend that the Act be amended to provide specifically that SIRC have the responsibility to compile and analyze warrant statistics and that SIRC be required to publish annually statistics containing the number of Canadian citizens or landed immigrants who have been affected by surveillance powers granted to the Service under judicial warrants.
We have often raised the issue of emergency warrants (1985-86 Annual Report, page 44; 1986-87 Annual Report, page 12; 1987-88 Annual Report, page 57). The elaborate procedures for obtaining a warrant that are currently in place offer important safeguards. But we are concerned that it might take too long in an emergency to obtain a warrant if the regular procedures are followed. Under the Official Secrets Act, warrants could be obtained within about three hours.
7.We recommend that section 21 of the CSIS Act be amended so as to permit the Director of the Service, with the agreement of the Solicitor General in each case, to issue a short-term, non-renewable warrant that would require an application to the Federal Court within 96 hours. There should also be the stipulation that SIRC must be notified within one week of the application.
Still in the area of warrants, we have also raised the issue of solicitor-client communications (1986- 87 Annual Report, pages 19-20; 1987-88 Annual Report, page 58). Such communications are being protected by warrant conditions prohibiting interception of communications at the office or residence of the lawyer, or at any other place normally used by the lawyer to consult with clients. Furthermore, the interception of calls between a target and his or her lawyer are limited to calls that the Director or a regional director general have determined relate to the threat specified in the warrant.
We are pleased that such conditions are routinely included in warrants, but would prefer that such safeguards be enshrined in legislation. The Criminal Code, for example, explicitly protects solicitor- client communications. Of course, we recognize that terrorists or other groups whose activities constitute threats to the security of Canada may include lawyers in their number. Our concern is limited to communications with lawyers that fall clearly within the solicitor-client description. Our proposals would pertain solely to lawyers who are acting in their capacity as legal counsel.
8.We recommend that a section be added to Part II of the CSIS Act to provide statutory protection to solicitor-client communications.
9.Further, we recommend that another section be added to Part II of the CSIS Act listing warrant limitations that shall be considered by Federal Court judges.
Devil's Advocate (Amicus Curiae)
Since 1987, a Department of Justice lawyer, responsible to the Deputy Solicitor General, has appeared at the Warrant Review Committee as “
devil's advocate”.* But this official is exercising a more limited mandate than we intended when we first proposed a devil's advocate, in our 1986-87 Annual Report (page 9).
At present, the devil's advocate does no more than ensure that the information CSIS intends to cite in a warrant application is accurate. We had in mind, rather, someone who would challenge the need for a warrant at all--someone to make the case that the proposed target (who does not, of course, even know a warrant is being sought) might make.
*By devil's advocate we mean an official appointed to argue a point of view, with which he or she may or may not personally agree, for the purpose of ensuring that all aspects of a matter are fully considered.
We are also concerned about the location of the devil's advocate's intervention in the process. Sitting on the Service's internal Warrant Review Committee, the devil's advocate can too easily be perceived as a mere token at best, an insider at worst. We believe that the devil's advocate should appear before the Federal Court itself.
Therefore, although the warrant application system seems to be working much better than before, we believe that considerations involving the appearance as well as the substance of natural justice prompt reform in this context.
10.We recommend that Part II of the CSIS Act be amended to add a section requiring that a “
devil's advocate”, appointed by the Court, appear at each Federal Court hearing at which a judicial warrant is sought.
11.We further recommend that where possible this lawyer not be a government lawyer, but be drawn from a list of security-cleared outside counsel.
For example, SIRC has a roster of such lawyers. To avoid any conflicts of interest, these lawyers could be appointed in alphabetical order or on some other random basis. The total number of new warrants and renewed warrants each year has fallen significantly, so this practice would not appear to represent a serious drain on resources.
Our current inability to see Cabinet decisions that affect CSIS has proved to be a problem in one instance we know of. During 1988-89, we were refused access to the Service's Multi-Year Operational Plan (MYOP) because it is prepared for submission to Treasury Board, a committee of Cabinet. In this instance, a compromise was reached: while the MYOP document itself was withheld, we were given the information it contains.
We have received assurances from the Ministry of the Solicitor General that cabinet decisions will be re-written and passed to CSIS as ministerial direction, which we automatically receive pursuant to subsection 6(2) of the CSIS Act. However, we have no way of knowing whether this procedure is foolproof or whether future Solicitors General would agree to continue the practice.
As we stated in our 1987-88 Annual Report, those of us who have been members of cabinets cannot understand why the statute would preclude the Committee from seeing cabinet decisions relating to CSIS operations. In our view, current arrangements create unnecessary public suspicion.
We recognize, of course, that we should not have access to records which would reveal the cabinet's decision making process. However, cabinet decisions are the executive authority used by all departments and agencies to justify their activities. It is essential that SIRC have access to cabinet documents directed or related to CSIS if it is to be in a position to review CSIS' performance of its duties and functions. Therefore, we believe that any cabinet decisions in CSIS' possession which relate to its duties, functions, or resources should be available to the Committee. Similarly, any memoranda to cabinet prepared by or about the Service should be available. Obviously, members of the Review Committee would be enjoined from revealing the content of confidences of cabinet to third parties; they are Privy Councillors and are bound by the same oath as are all past and present members of cabinet.
12.We recommend that subsection 39(3) of the CSIS Act be repealed, thereby permitting the Security Intelligence Review Committee to have access to all information under the control of the Service, regardless of its source.
Parliament might also consider amending subsection 31(2) so as to allow the Inspector General access to all information under the control of the Service, including confidences of cabinet.
In the past, the Auditor General audited the Security Service of the RCMP and, since he has a responsibility to verify how all money derived from the Consolidated Revenue Fund is spent, he has a statutory duty to audit CSIS as well. His auditors all have the requisite degree of security clearance to do the job. Now that the recommendations of the Osbaldeston Committee have been implemented, we think that it would be timely for a system audit of the Service to be conducted. We think it highly desirable for the Committee to have an element of responsibility for such an audit, given its understanding of the operational aspects of the Service's mandate.
Under section 38 of the CSIS Act, no specific authority is conferred upon SIRC to assess the Service's financial performance; however, the Committee may “
review generally the performance by the Service of its duties and functions”. The Committee believes that this power is technically sufficient to enable it to assess the Service's financial management.
13.Nevertheless, and out of an abundance of caution, we recommend that a sub paragraph be added to section 38 of the Act to indicate clearly that the Security Intelligence Review Committee has the authority to undertake financial reviews of the Service in cooperation with the Auditor General.
Many governments have recently attempted to remove potential obstacles to public officials who wish to expose activities that they think are wrong. There is a so-called “
Whistleblowers' Protection Act” in the United States (Civil Service Reform Act, 1978, 5 U.S.C. s.7701 et seq.). Similar reform is proposed in Ontario, and protection for “
whistleblowers” is found in such recent federal legislation as the Canadian Environmental Protection Act (s.58(4) of that Act, being S.C. 1988, c.22). As we noted in our 1987-88 Annual Report (page 59), in the United Kingdom, a special official takes “
leaks” from members of MI5, who are not required to identify themselves.
Under the CSIS Act, there is no protection from disciplinary measures provided to employees of the Service who expose perceived wrongdoing to the Committee. Indeed, complainants must first make their concerns known to the Director, who may be precisely the person that the employee wishes to avoid.
14.Accordingly, we recommend that the CSIS Act be amended by adding subsection (3) to section 41 to guarantee anonymity to CSIS employees who complain to SIRC, and to guarantee that if such complainants are eventually identified, they will not face any disciplinary measures solely by reason of making such complaints.
Under the CSIS Act, SIRC hearings must be conducted in private. Under subsection 48(2) of the Act, no one is entitled as of right to be present when representations are made to the Committee by any other person. In 1985, the Committee adopted quite elaborate rules of procedure in relation to the investigation of complaints made to it. Separate procedures have been prepared for complaints involving the denial of security clearances in employment, and in immigration and citizenship matters. These procedures were adopted by the Committee pursuant to its right to do so under subsection 39(l) of the Act. The extensive procedural safeguards that the Committee has generated and distributed to the public are in marked contrast to the often abbreviated process that applies, for example, before a deputy head of a government institution reaches a decision to deny a security clearance. SIRC's investigations typically are very extensive and the hearing that is often held usually resembles a formal adjudication held by an administrative tribunal exercising quasi-judicial powers.
When public knowledge of evidence about to be adduced might be injurious to national security, perhaps because it would reveal sources or otherwise constitute a “
threat to the security of Canada”, complainants and their counsel are excluded while the evidence is heard by the Committee. There have been several challenges initiated in the Federal Court questioning the Committee's procedures in hearing complaints. So far, none of these challenges has succeeded and SIRC's rules of procedures and underlying practices have “
passed muster” when measured against the Charter of Rights and Freedoms and the requirements of procedural fairness. Obviously, SIRC must abide by the outcome of any litigation that is not yet completed.
In oral hearings, it is in the discretion of the member hearing the case to determine whether or not a party should be excluded while testimony is given by another party.
SIRC has evolved a procedure by which the counsel and the excluded party (usually the complainant) are then brought back into the room and given the gist of the evidence, without disclosing the national security information. They are then allowed to ask questions, and, where possible, cross-examine, on the basis of this summary.
We believe that the role now played by counsel to the Committee under our rules of procedure has proven to be quite fair and effective in this context. During complaint hearings when parties are excluded, Committee counsel is specifically instructed to ask Service witnesses the kinds of questions that one would expect the complainant's counsel to ask and to cross-examine with equal vigour. The summary of evidence that is later provided to the excluded party is usually negotiated by counsel for CSIS and SIRC under the supervision of the presiding member. What flows to complainants and their counsel is sufficient information to enable them to be as fully informed as possible of the case against them.
Only one problem has arisen with the present wording of the Act respecting investigations. Subsection 48(2) states:
48(2) In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person.
It has been asserted that since the subsection can be read as denying access to “
representations” only, it does not deny access to the presentation of evidence or the personal appearance by any other person. Such an interpretation, if upheld by the courts, would make Committee investigations dealing with classified national security matters all but impossible.
We do not believe that this assertion is well-founded. However, it would be useful to reword subsection 48(2) to clarify its intent.
15.We recommend, therefore, that the words “
evidence adduced, or statements made” be added to subsection 48(2) so that it provides:
... but no one is entitled as of right to be present during, to have access to or to comment on representations made, evidence adduced, or statements made to the Review Committee by any other person.
Without a security clearance, many employment opportunities--both in the public and private sectors--are effectively lost. The CSIS Act allows only some affected persons to complain to the Committee (s. 42).
First, the person must have been denied employment, dismissed, demoted or transferred, or denied a promotion or a transfer in government or else be refused a contract to supply goods and services to government for the same reason. As we noted in our 1987-88 Annual Report (page 56), the present wording means that when a person is fired or not hired by a contractor in order to remove an obstacle to doing business with government, he or she has no effective redress. In addition, where certain activities require the use of federal facilities, such as airports, which are denied to individuals lacking a security clearance, some persons will be unemployable. They too have no right to complain to the Committee.
Second, the decision to deny a security clearance must be one taken by a “
Third, the right to complain at all is predicated upon a denial. This term may be narrowly interpreted to mean that only an outright refusal will trigger the statutory right. What happens if the authorities delay unreasonably, but never get around to a formal denial? At present, the individual concerned can complain to the Review Committee pursuant to the procedures specified in section 41, but more protection against such delay may be needed in the Act.
Fourth, the Act refers to a loss of employment opportunity “
by reason only of the denial of a security clearance”. What happens if the employer can honestly say that there were other reasons, albeit very secondary ones? This particular point has been cited on at least two occasions in challenges to the Committee's jurisdiction to investigate a complaint.
We believe that the right to complain to the Review Committee should be available to anyone who is denied a security clearance. There should not be categories of Canadians or landed immigrants who do not have the right to complain to SIRC when they are denied a security clearance, while others have the right to a full investigation by the Committee. It is a fact of life in the modern world that the denial of a security clearance usually has an immediate effect on an individual's employment; it always has a long term effect on the individual's employment potential.
In any event, above and beyond the serious effects on employment, no Canadian or landed immigrant should be put in the position of having his or her loyalty questioned to such an extent that a security clearance is refused without having an automatic right to request an investigation by the Review Committee.
Often, individuals are denied any level of security clearance, but in some circumstances individuals who require a TOP SECRET clearance for their employment are granted only a SECRET or CONFIDENTIAL level of security clearance. This usually has the same effect on the individual's employment as an outright denial of any level of security clearance would have had.
The amendments we propose would provide the right to an investigation by the Review Committee to any Canadian or landed immigrant denied a security clearance at the level required.
16.We recommend that subsections 42(l) and (2) be repealed and replaced by:
“42(l) When a security clearance, required by the Government of Canada for an individual for any purpose, is denied or is granted at a lower level than that required or is downgraded to a lower level than that required, the deputy head or other person making that decision shall send, within ten days after the decision is made, a notice informing the individual of the denial of a security clearance at the required level, and of the individual's right under this section to complain to the Security Intelligence Review Committee.”
The remainder of section 42 would require minor consequential amendments.
Effect of Committee Recommendations about Complaints
At present, the Thomson case is again before the Federal Court of Canada. There is a disagreement between the Appeal and Trial Divisions of that Court as to whether the Committee's recommendations on security clearances should be binding upon deputy heads. Regardless of the eventual outcome of this case, Parliament may wish to clarify its intent during the five-year review of the CSIS Act.
We note that in Australia's ASIO Act, the “
findings” of the Security Appeals Tribunal must be treated as “
superseding” the original security clearance (s. 6 1 ).
We believe that it would in no way violate conventions of ministerial responsibility if Parliament decided to empower the Security Intelligence Review Committee to make final determinations in those cases where it disagrees with a decision of a deputy head to deny a security clearance. Decisions that determine whether an individual may work in a chosen field directly affect the rights of individuals. To be vindicated before a neutral tribunal like SIRC, only to learn later that a security clearance has still been denied by a deputy head in his or her absolute discretion must be deeply disturbing.
Finally, the new Government Security Policy (GSP) of June, 1986, specifies that the Security Intelligence Review Committee constitutes the redress procedure for all public servants who are denied a security clearance. We believe that the clear implication of these arrangements is that SIRC has decision-making powers.
17.Therefore, we recommend that subsection 52(2) of the Act be amended to provide that Committee rulings in respect of security clearances are final and binding upon a deputy head.
Access to Information and Privacy
In the normal course of events, the powers of the Security Intelligence Review Committee will almost certainly overlap with the separate powers exercised by the Information Commissioner or the Privacy Commissioner. This has already occurred with respect to the Privacy Commissioner.
In investigating complaints under the Access to Information Act or the Privacy Act, either Commissioner may have entered into negotiations with the Service, perhaps with respect to the same records that the Committee wishes to inspect in the discharge of its separate statutory responsibilities. The Committee believes that access by either Commissioner should not be hampered because of a parallel SIRC investigation or vice versa. Each independent agency has its own statutory responsibility to discharge. Though we believe that the present wording of the Act amply provides for SIRC access under any and all circumstances, some government authorities are not entirely convinced of this.
18.Therefore, we recommend that Parliament consider the advisability of clarifying this issue by adding a paragraph to subsection 39(2) of the CSIS Act specifying that the Committee is entitled to have access to any information under the control of the Service, notwithstanding the existence of any investigations that may be undertaken by the Information Commissioner or Privacy Commissioner.
The Canada Evidence Act--I
In testimony to the Justice and Solicitor General Committee on November 20, 1986, the Chairman replied to a question regarding section 37 of the Canada Evidence Act. Under this section, a member of CSIS can curtail testimony in criminal trials. This practice has been much criticized and Mr. Atkey reported that “
there is discomfort within the Service with the particular wording and operation of that section... I think this is a problem area” (page 2:16). He then suggested that this was a good topic for consideration during the parliamentary review of the CSIS Act. He agreed that it was “
a terribly awkward procedure... [and that there was] a potential for prejudice to the accused in a criminal trial”. However, SIRC fully appreciates why any security intelligence service would struggle to keep its sources and “
tradecraft” secret. We agree that CSIS intelligence should only rarely be used as evidence in court proceedings. However, it must be recognized that there will be exceptions and procedures should be available to protect the national interest when that happens.
In our 1986-87 Annual Report (page 25-26), we noted that in section 486 of the Criminal Code, the public may be excluded from courtrooms for various reasons that are listed.
19.In that light, we recommend that section 486 of the Criminal Code be amended
- to add the phrase “
threats to the security of Canada, as defined in section 2 of the CSIS Act” so that the judge would have the power to exclude the public from portions of trials where national security matters might foreseeably be raised; and
- to allow a judge to exclude the defendant and counsel as well as the public when security matters were raised.
The Canada Evidence Act--II
Until the enactment of amendments to the Canada Evidence Act in the early eighties, the Solicitor General could sign a certificate to the effect that the disclosure of certain information would be injurious to national security. The minister's certificate was final and completely unassailable before any court.
Section 38 now provides a means by which the written or oral objections to evidence on national security grounds may be reviewed. The review may be carried out by the Chief Justice of the Federal Court or by a judge designated by him or her. In other words, the review of the evidence in question can only be carried out by one specified person or the nominee of that person, and the hearing must be carried out in camera and in the National Capital Region.
This process was designed to enhance the rights of individuals involved in criminal cases before the courts. However, these rules have caused problems in certain situations arising after the Review Committee was created in July, 1984.
Review Committee recommendations/decisions are sometimes challenged before the Federal Court of Appeal under section 28 of the Federal Court Act. When this occurs, special direction must be obtained from the Court to protect national security documents which would normally be made public if the usual rules were followed. In addition, when the Department of Justice objects to the disclosure of national security information to the appellant, the Court must then await a ruling from a judge designated by the Chief Justice as to the validity of the “
national security” objection. This ruling by the designated justice can be appealed to the Federal Court of Appeal, and Appeal Court justices can then examine the documents in question. Ironically, however, without an appeal in the face of a ruling in favour of the Crown by the designated judge, the Appeal Court cannot examine the documents.
This complex process takes place as part of a procedure whose purpose is to review the Review Committee's recommendation/decision following an investigation. Such an investigation by the Review Committee examines all documents, whatever their classification, and hears oral evidence regardless of its “
national security” sensitivity. All classified evidence is withheld from the complainant during a Review Committee investigation.
Since the Review Committee's recommendation/decision is very often based, for the most part, on “
national security” evidence, any court charged with reviewing the Review Committee's conclusions and procedures could only do so effectively if it also had access to all the evidence considered by the Review Committee.
20.Accordingly, we recommend that the CSIS Act be amended to provide, in the event of judicial review, that the Federal Court of Appeal have exclusive jurisdiction under s. 28 of the Federal Court Act, and be entitled to review any Review Committee report rendered pursuant to section 42 or any report affecting the rights of an individual rendered pursuant to section 41, together with all relevant documents.
21.We further recommend that special procedures be authorized either by statute or by regulations to enable Review Committee files and documents to be transferred to the Federal Court of Appeal without the nature of those documents being made public, and, where necessary, without even the existence or absence of such files being acknowledged.
Acceptance of these recommendations would have the beneficial side-effect of eliminating any requirement for an individual to challenge a Review Committee ruling under section 18 of the Federal Court Act. This procedure is unfair at present because the individual concerned usually knows very little indeed of the case made against him and has very little chance of being able to construct an adequate application for judicial review. The practical effect of the present procedure is to deprive most individuals who complain under section 41 of the CSIS Act of the right to challenge a Review Committee report effectively.
The Framework of Accountability
After five years of experience, the Committee has formed strong opinions on whether the institutions now set out in the Act are effective and necessary. In our unique Canadian model, the Solicitor General, accountable to Parliament, is ultimately responsible for the Service. Under the Act, there is also a full-time “
insider” in the Inspector General, who is “
the Minister's person” and assists him in carrying out his responsibility for CSIS. SIRC completes the picture. It is a part-time, tri-partisan committee, independent of the government of the day. In our view, the combination of a tri-partisan group of part-time Privy Councillors found in SIRC has worked well. Consensus has usually been achieved and partisanship has been minimized. Another advantage is that as compared to the experience with oversight bodies elsewhere, “
leaks” have not been a problem.
22.We recommend that the CSIS Act retain the Security Intelligence Review Committee with its present jurisdiction.
The alternative, of course, is to provide for a standing committee of Parliament to oversee CSIS. There are two such committees in the Congress of the United States. In Australia, Parliamentarians were recently appointed to the Parliamentary Joint Committee on the Australian Security Intelligence Organization; however that Committee is somewhat limited in gaining complete access to documents held by ASIO. Moreover, the McDonald Commission recommended a joint parliamentary oversight committee. Nevertheless, we think that the experiment with SIRC has proven successful and propose that the Committee be retained in a revamped CSIS Act as the principal oversight body. In urging this continued role for SIRC, we would make a related recommendation.
23.We recommend that the CSIS Act contain a provision requiring the Director of the Service to offer to consult regularly with the leaders of the major opposition parties represented in Parliament, in order to keep them informed on matters relating to security.
This kind of provision is found in the ASIO Act (s.21) and, to our knowledge, has worked well. It would strengthen the role of Parliament in the chain of accountability.
Should SIRC be empowered to review the activities of all the other institutions that comprise the Canadian intelligence community? In Appendix C of our 1987-88 Annual Report, we outlined the main constituents of Canada's intelligence network. In testimony to. the Justice and Solicitor General Committee on June 3, 1986, Mr. Atkey stated that “
this was an issue that Parliament should address at some time” (page 21:25). Mr. Atkey did not discuss whether such expanded oversight duties should be conferred upon SIRC.
Australian legislation provides for an. independent oversight body for the entire Australian security intelligence community. The Office of the Inspector General of Intelligence and Security is responsible for “
oversight and review of the compliance with the law by, and the propriety of particular activities of, Australian intelligence or security agencies” (The Inspector General of Intelligence and Security Act, 1986, section 4). This Office oversees the Australian counterparts to CSIS, the Communications Security Establishment, the Office of National Assessments, and the directorates of intelligence and security in the Department of National Defense, as well as ASIS, Australia's counterpart to the CIA.
In the United States, of course, the situation is similar to that in Australia: all intelligence agencies are subject to review and oversight by Congressional committees.
The McDonald Commission recommended that the review body it proposed should cover all federal agencies engaged in the clandestine collection of intelligence, except for the RCMP. (Recently, the RCMP admitted to the formation of a National Security Investigation Section (NSIS). There seems to be no obvious reason why this organization should not also be subject to external review.) Its report suggested that unless the review body was given this broader jurisdiction, “
it would be all too easy for a government to evade its scrutiny by de facto transfers of responsibilities from the security intelligence agency to some other organization which is not subject to its review” (McDonald Commission Report, Volume 2, page 885).
We observe that there is still no review mechanism in place for the balance of the Canadian intelligence community apart from ministerial responsibility. Of course, if Parliament were to accept our recommendation to establish an Intelligence Assessment Office (see page 18), all Canadian intelligence agencies would benefit from the resulting “
quality control” which would be exercised by such a body. But such quality control would not be the equivalent of a system of review. We believe that it would be appropriate for Canada to follow the Australian and American practice by instituting, in line with the McDonald Commission's recommendations, a system of review for all federal agencies engaged in the collection of intelligence.
24.We recommend that Parliament consider enacting legislation to provide for the independent monitoring of other institutions within Canada's intelligence network.
We have no strong view as to whether this responsibility could be assumed by an expanded SIRC or some other independent body established for this purpose.
Intelligence: Balancing Supply and Demand
Especially at a time when sound financial management is at the forefront of the public's attention, Parliamentarians will be particularly interested in assessing the cost-effectiveness of the Service. As an intelligence agency, is CSIS gathering and analyzing information effectively and then transforming it into useful “
intelligence”? SIRC defines “
security intelligence” as “
the collection, from both open and covert sources, and analysis of information which provides advance warning and advice about activities which may constitute a threat to the security of Canada”.
There are two major categories of intelligence: security intelligence which can originate at home or abroad but which deals with threats to the security of Canada, and foreign intelligence which deals with information about other countries. The Service is the primary contributor of the former.
A further useful distinction between different types of intelligence was made by the Independent Advisory Team that investigated the Service in 1987 (the Osbaldeston Committee). Operational intelligence is “
related to the investigation of particular activities considered threatening to the security of Canada”. It relies heavily (but not exclusively) on investigative techniques, is usually short-term and is produced for specific consumers or for a specific purpose. Strategic intelligence “
relies more heavily on research using information from all sources, tends to be longer term and more global in scope and is produced for an interdepartmental audience or for the government as an entity”. It is “
evaluated in the context of other Canadian national interests”.
In our 1987-88 Annual Report, we summarized the results of our investigation of the Analysis and Production Branch in CSIS. We concluded that significant improvements have been made.
However, we noted a lack of the multi-disciplinary input necessary in generating the economic, political and social components of comprehensive strategic intelligence. For instance, to date there has been little input from specialists external to government. In our view, changes in the environment of the Branch are still required if CSIS is to move away from producing mainly operational intelligence.
We note that the Osbaldeston Committee was also concerned about the intelligence produced by CSIS and “
the lack of a coordinated system for production”. Similarly, in 1987 the Senate Special Committee on Terrorism and Public Safety (the Kelly Committee) recommended that “
the Security and Intelligence Secretariat of the Privy Council Office be expanded and strengthened to provide a single focus for the gathering of intelligence and assessments from federal departments and agencies for review by the Intelligence Advisory Committee (IAC) and for dissemination to the relevant federal departments and agencies” (page 61).
The IAC is “
the closest Canada comes to having a single focus for the gathering, analysis, discussion and dissemination of defense and security information and intelligence”. IAC members cooperate and coordinate the production of intelligence, drawing on research and analysis carried out by federal agencies, notably CSIS, the Department of External Affairs (DEA), the Department of National Defense (DND) and the Communications Security Establishment (CSE). At present, the IAC serves all departments; it also supports the Cabinet Committee on Security and Intelligence which is the Prime Minister's vehicle for exercising leadership and setting priorities for both the security intelligence and foreign intelligence agencies.
The McDonald Commission also urged that there be a centralized assessment function in Canada, with a centralized assessments body. It recommended that a Bureau of Intelligence Assessments be established in the Privy Council Office (Second Report, volume 2, at pages 854-56). The Bureau would have no collection capacity. The McDonald Commission urged that the Bureau be separate from the Security and Intelligence Secretariat, with a nucleus of its own intelligence analysts augmented by officers seconded from the departments and agencies of government with responsibilities for security and intelligence matters. The Director General of the Bureau would report to the Prime Minister through the Secretary to the Cabinet and would also be a member of the Intelligence Advisory Committee.
The Commission also urged, however, that the security intelligence agency (now CSIS) should have a strong analytic capacity, producing both short-term and long-term threat assessments. Its assessments would be used by the proposed Bureau, and its intelligence officers would frequently be part of groups working under the auspices of the Bureau to produce long-term estimates and priorities.
We have been favourably impressed with Australia's Office of National Assessments (ONA). In Australia, a clear distinction is made between “
collection agencies” and “
assessment agencies”. Established over ton years ago, the ONA is responsible for collating and evaluating information on many political, economic and strategic matters. The Director-General of the ONA reports to the
Prime Minister. It does not collect intelligence as such; instead, it assesses what the collection agencies in that country's security intelligence community-including the Australian Security Intelligence Organization (ASIO)-may provide to it. The ONA also produces reports on specific issues to assist ministers in formulating policy. It was created as an independent body designed to give objective, unfettered advice. It also assists the government in setting its intelligence priorities and requests the collection agencies to obtain specific information it lacks. The ONA consists of a mix of analysts drawn from both the public service and the private sector, including academics with expertise in specific areas. The previous head of the ONA, Michael Cook, was recently appointed Australian ambassador to Washington. He has been replaced by Australia's ambassador to Japan.
25.We recommend that Parliament examine the feasibility and merits of establishing an institution similar to Australia's Office of National Assessments.
Such an Intelligence Assessment Office would assess the intelligence product generated by the Service, as well as by other federal agencies, such as CSE and the Foreign Intelligence Bureau in DEA. In addition, it would assist the Cabinet Committee on Security and Intelligence in setting the Government's priorities, and would exercise a quality control function over the intelligence produced by all federal agencies. Like CSIS, it might be given a statutory mandate; like ONA, it should encourage the involvement of a mix of qualified citizens, including experts from outside the government. It would report to the Intelligence Advisory Committee.
In modern times, Canada has not had a secret foreign service. Should we have an offensive intelligence-gathering function, like the CIA in the United States or the Australian Secret Intelligence Service (ASIS)? Since we have no capacity to collect foreign intelligence by covert human means, we are dependent upon other countries for some types of information about foreign countries, which may pose a threat to Canadian independence in some circumstances. To the extent that covert sources of intelligence are an asset in gaining access to markets and technologies and in international bargaining, Canada will be at a disadvantage with its major trading partners. However, it is by no means clear that Canada needs a secret foreign service.
In light of its location and the difficulties it had in obtaining the foreign intelligence it needed from its allies, Australia established ASIS to concentrate on areas of particular interest to that country. Both political and economic intelligence is generated for Australian policy-makers. There does not appear to be any comparable need in Canada for an “
offensive” foreign intelligence agency. However, the case may be more compelling for security intelligence and perhaps criminal intelligence relevant to Canada that is collected abroad.
The Committee is opposed to the establishment of a separate, offensive foreign intelligence agency for Canada. We simply do not believe that the case has been made for such an agency. However, we believe that the CSIS Act could provide at least the possibility of the collection of foreign intelligence by CSIS, should the need arise.
26.Therefore, we recommend that section 16 of the Act be amended to remove the words “
This amendment would enable CSIS to assist the Minister of National Defense or the Secretary of State for External Affairs in collecting intelligence relating to the capabilities, intentions or activities of foreign states or persons from any source whatsoever. Under the section, CSIS would only be able to assist outside Canada if it received a “
personal request in writing” from either Minister and obtained the written consent of the Solicitor General as well. Such an amendment should not impair the ability of SIRC to review the operations of the Service, either at home or abroad.
However, in the event that Parliament chooses to make this amendment to section 16 of the Act and there is any doubt as to SIRC's jurisdiction in this regard, we would propose that an amendment be made to section 38.
27.We recommend that section 38 of the Act be amended to clarify the Committee's authority to monitor any CSIS operations that may take place outside Canada.
The adoption of recommendations 26 and 27 would not necessarily mean that there would be any real change in CSIS operations. However, in considering such an amendment, Parliament could debate whether it wanted to provide the opportunity for CSIS, in particular cases.
Release of Information
Section 19 of the Act limits the disclosure by CSIS of information it has collected, using its extensive powers. We believe that in the spirit of the Act the same limitations apply to disclosure of such information by the Solicitor General and by officials and exempt staff in the Ministry of the Solicitor General; they have access to secret CSIS information, and uncontrolled disclosure by them would make a mockery of the carefully drafted protections found in section 19. However, although we have no reason to believe there has been any impropriety, we have learned that the Solicitor General and his officials and staff do not believe they are bound by this section.
28.We recommend, therefore, that the limits prescribed by section 19 of the CSIS Act apply equally to the Solicitor General and to all officials and exempt staff in the Ministry of the Solicitor General having access to information obtained by CSIS in the performance of its duties and functions.
In another respect, however, we believe the disclosure provision should be broader. Section 19 now makes provision for disclosure to a “
person in the public service of Canada” under some circumstances. By a narrow reading, this could mean only paid officials employed under the terms of the Public Service Employment Act. We believe it should also include Senators and Members of the House of Commons.
29.We accordingly recommend that paragraph 19(2)(d) of the CSIS Act be amended to permit disclosures to Senators and MPs on the same basis as to Ministers of the Crown and a “
person in the public service of Canada”.
As has been stated by the McDonald Commission and by this Committee, the most intrusive investigative tool is probably the “
human source”. A “
human source” is a person who informs the Service of the activities of a CSIS target. The human source may have been recruited when he or she was already in a position close to the CSIS target, or may have been asked to gain such a position by infiltrating the target's organization or circle of friends. Human sources are usually paid according to the value of the information they provide. Some have suggested that the use of human sources be allowed only under the authority granted by a judicial warrant, in the same way as other intrusive techniques are presently authorized. We believe that this would put too onerous a restriction on the Service, and would, in many circumstances, be most difficult to implement in a practical way. It would be difficult, for example, to fit casual or “
walk-in” sources, sources under development, and many unpaid sources into such a scheme.
However, we believe that the Service should be required to observe strict ministerial guidelines in the use of human sources.
30.We recommend, therefore, that the CSIS Act be amended to prescribe that the Solicitor General may issue precise guidelines to the Service on the use of human sources. Such guidelines would be passed to the Review Committee automatically pursuant to subsection 6(2) of the Act.
Committee Reports and Statements
Section 55 of the CSIS Act provides for consultation between the Review Committee and the Director when SIRC is preparing certain reports, so as to ensure compliance with the security requirements set out in section 37 of the Act. Though we believe the intent of the section is clear, it does not state that, in case of disagreement, the final decision as to what may be included in a report or statement is that of the Review Committee.
31.We recommend, therefore, that:
- the opening words of section 55 be amended to provide that before determining the content of a statement or report described in section 55, the Review Committee shall consult with the Director in order to ensure compliance with section 37; and
- a new subsection be added, as follows:
The Review Committee's determination in this regard shall be conclusive”.
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