Speech to a Brazilian Seminar on Intelligence and the Democratic State
A Presentation by Tim Farr, Associate Executive Director
Security Intelligence Review Committee
December 2, 2005
I'm going to discuss three organizations today, all of which are or will become responsible for reviewing the operations of the Canadian Security Intelligence Service or CSIS. This is the agency within Canada which investigates and reports on threats to our country's national security.
The first organization is the Inspector General, CSIS. The IG is an internal review body which monitors CSIS activities and reports directly to the Minister of Public Safety and Emergency Preparedness.
The second is the Security Intelligence Review Committee or SIRC, which is an independent, external review body which reports to Canada's Parliament. Since this is where I work, I plan to discuss SIRC in the most detail.
I also want to highlight some of the major differences between SIRC and its counterparts in the United States and the United Kingdom. Canada is very proud of both its civilian intelligence service and the review bodies which ensure its accountability, and I hope my presentation will help to explain why.
Finally, I will talk about the Canadian Government's proposal to establish a new Committee of Parliamentarians, to review CSIS and other departments and agencies involved in national security intelligence. While this Committee does not yet exist, it has been the subject of debate and consultation for almost two years.
The McDonald Commission
Before I begin, I want to take you back more than thirty years, so that you can understand where these ideas originated. As I'm sure this audience knows, many oversight and review agencies were created in response to abuses linked to their intelligence services. That was certainly the case in the United States, and it also holds true for my country.
So, let's turn the clock back and see what went wrong in Canada. Consider the following:
- the offices of a separatist newspaper in the Province of Quebec are burglarized;
- a barn outside of the City of Montreal, which had been used as a meeting place by left-wing Quebec intellectuals, is deliberately set on fire;
- Canada 's then-Solicitor General is forced to admit that these types of illegal activities have been going on for years, and in fact, even when asked, those responsible deliberately hid the full story from him.
While this probably does not sound like the Canada you've visited or read about, they describe some of the illegal activities of the Security Service of the Royal Canadian Mounted Police (RCMP) during the 1970s. Up until that time, it was Canada's national police force that was responsible for national security, and because it was a police force, it operated at arm's length from government to avoid any political interference in its day-to-day operations.
All this changed in the late 1970s, when the scandals I just described became public knowledge. They resulted in the creation of the McDonald Commission of Inquiry Concerning Certain Activities of the RCMP, which reported in 1981, and whose recommendations led directly to the disbandment of the RCMP's Security Service.
I'm not going to spend a great deal of time discussing the McDonald Commission, because after it completed its work, there was further debate and study by Canada's Senate. Suffice to say, Mr. Justice McDonald's remarkable report heralded a new chapter in the history of Canadian security intelligence.
It resulted in the creation of a new civilian intelligence service and a two-tiered approach to its review. Perhaps most importantly, it resulted in the passage of the Canadian Security Intelligence Service Act on July 16, 1984, making Canada one of the first democratic governments anywhere in the world to establish a legal framework for its security service.
For the first time, Canada had legislation that clearly defined the mandate and limits of state power to conduct security intelligence. And equally significant, the CSIS Act created a framework to keep those powers in check—which by and large, has stood the test of time.
Inspector General, CSIS
With that brief summary, I'm now going to talk about the organizations which are responsible for reviewing the operations of CSIS. Of course, like any other government department or agency, CSIS is also accountable through the existing apparatus of government, specifically its Minister, central agencies and the Auditor General, Information Commissioner and Privacy Commissioner of Canada.
The first organization that I will discuss is the Inspector General, CSIS. As I explained earlier, this is an internal review body which monitors CSIS activities and reports directly to the Minister of Public Safety and Emergency Preparedness.
The IG, which began operations in 1985, is part of the Department of Public Safety and Emergency Preparedness. Mrs. Eva Plunkett is the current Inspector General and she is responsible to the Deputy Minister of that department. In effect, the IG serves as the Minister's “
eyes and ears” and provides assurance that CSIS is in compliance with the law, ministerial direction and operational policy.
The IG's functions are clearly stated in sections 30 through 33 of the CSIS Act. They are to:
- monitor CSIS compliance with its operational policies;
- review CSIS operational activities;
- submit certificates to the Minister stating whether the IG is satisfied with the CSIS Director's Annual Report; and
- conduct reviews of specific CSIS activities as directed by SIRC. Occasionally, the Minister may also request the IG to examine particular issues and operational activities.
Incidentally, the CSIS Act requires the Minister to send both the CSIS Director's Annual Report and the IG's certificate to SIRC, for our information and review.
Security Intelligence Review Committee
The second organization I want to discuss is the Security Intelligence Review Committee or SIRC. Unlike the IG, this is an independent, external review body which does not report to any Minister, but rather to Canada's Parliament.
SIRC was established at the same time that CSIS was created and derives its powers from the same legislation, the CSIS Act.
I work in SIRC as its Associate Executive Director under Mrs. Susan Pollak. We in turn report to an actual Committee of five distinguished Canadians. In fact, two Committee Members were former Premiers of the Provinces of Manitoba and Saskatchewan.
Our Chair is the Honourable Gary Filmon, who was appointed on June 24, 2005. The other Committee Members are Raymond Speaker, Baljit Chadha, Roy Romanow and Aldéa Landry.
All of SIRC's Members have the initials “
P.C.” after their names. This means that they are Privy Councilors, who have access to “
Top Secret” information, a privilege which is not given to most Parliamentarians. Of course, with this privilege comes the responsibility of keeping privy, or secret, that very same information.
SIRC's role is relatively easy to describe, if difficult to execute. Quite simply, we exist to protect Canadians' rights by ensuring that CSIS acts within the law.
Basically, SIRC has two functions: to conduct reviews and to investigate complaints. We have the absolute authority to examine all of CSIS's activities, no matter how sensitive and how classified that information may be. The sole exception is Cabinet confidences, which means discussions among Ministers.
Our reviews are done by assessing CSIS activities against four instruments, which together form the legislative and policy framework of the Service. These are: 1) the CSIS Act; 2) Ministerial direction; 3) National requirements for security intelligence; and 4) CSIS operational policy.
In each of its reviews, the Committee tries to answer several essential questions:
- Did CSIS have reasonable grounds to suspect a threat to the security of Canada?
- Was the level of investigation proportionate to the seriousness of the threat?
- Did exchanges of information between CSIS and domestic and foreign agencies comply with the law and the agreements and caveats which govern information-sharing?
- And last but not least, did CSIS's investigation respect the rights and freedoms of individuals who were involved in lawful activities in protest or in defense of a cause?
SIRC's second responsibility is to investigate complaints against CSIS that may come from individuals or groups. These can be complaints about:
any act or thing done by the Service” (section 41);
- denials of security clearances to federal government employees and contractors (section 42);
- referrals from the Canadian Human Rights Commission in cases where the complaint relates to the security of Canada; and
- very infrequently, Minister's reports in respect of the Citizenship Act.
When SIRC is dealing with a complaint, we have all of the powers of a superior court. If we accept jurisdiction, the complaint is investigated through a quasi-judicial hearing presided over by one or more Committee Members, assisted by our Legal staff.
Pre-hearings may take place to establish and agree on procedures. SIRC's Senior Counsel Marian McGrath also provides advice to Committee Members on procedural and legal issues and prepares summaries of evidence for the Committee's consideration.
Complaint cases can be very complex, involving many documents, transcripts and other evidence. After the hearings are completed, the Presiding Member issues a report including findings and recommendations, to both the Minister and the Director of CSIS. And once any information with national security implications is removed, the complainant is also advised in writing of SIRC's findings.
If the Committee finds that CSIS has acted appropriately, we convey that assurance to the complainant. If the Committee identifies issues of concern, these are included in our report to the Director of CSIS and the Minister and, to the extent possible, in an edited summary to the complainant.
The last thing I want to mention is that every year we prepare an Annual Report which is publicly tabled in Parliament. Every review undertaken and every complaint investigated is reflected in its pages. Because of legal obligations to protect national security and personal privacy, SIRC's Annual Report can only summarize our classified, internal reports. However, all 21 of our Annual Reports dating back to SIRC's creation are available on our website.
Comparisons to the United States and UK
Now that I have described what the SIRC does, I want to try to highlight some of the ways which SIRC differs from the accountability mechanisms which exist in the United States and the United Kingdom. Canada is very proud of its system and I would like to underline the reasons why.
1. Oversight and Review
The first and perhaps most important difference between the Canadian, British and American systems are their mandates.
The committees in the United States and the United Kingdom are oversight organizations which look on a continual basis at what is taking place inside an intelligence agency, so their mandates are to evaluate current investigations or work in “
This enables oversight bodies to participate in some of the decisions made by their intelligence agencies, because they have the capacity to comment on or question a decision, at any time during an investigation.
SIRC on the other hand, is a review body which investigates the operations of CSIS after the fact. As a result, the Committee does not participate in operational decisions or the actual activities of CSIS.
2. Make-up of the Committees
Unlike the United States and the United Kingdom, SIRC is made up of appointed — and unelected — members. Furthermore, these individuals are specifically prohibited from being current members of either the Canadian Senate or the House of Commons, although they can and often were former members.
This was a deliberate choice of Canada's Parliament when it passed the CSIS Act in 1984, because the McDonald Commission had called for a joint Senate and House Committee to review CSIS.
Instead, Parliament rejected the idea that elected representatives be part of SIRC, to make clear that SIRC's priorities should not be dictated by party politics. As a result, the Committee's Membership does not change after federal elections and it is not bound by political party lines.
3. Review of Complaints
As I explained earlier, SIRC's mandate includes the investigation of complaints, in which case it is acting as an independent quasi-judicial tribunal. Canada's system has no equivalent in the United States or the United Kingdom.
In the United States, neither the House Permanent Select Committee on Intelligence nor the Senate Select Committee on Intelligence have the power to receive complaints. They must be routed to either the Justice Department or the Inspector General for the CIA, without any guarantee that an investigation will follow. In the United Kingdom, complaints are heard by a tribunal which is independent of the Intelligence and Security Committee.
Both of the American committees have the right to examine the expenditures of the intelligence services, to ensure that the funding is appropriate and that expenditures are authorized. The British Intelligence and Security Committee has the same role in the United Kingdom.
Under the Canadian parliamentary system, only Parliament can authorize the expenditure of public funds and it is Parliament who decides whether government spending reflects its political choices and priorities. The bottom line is that CSIS is accountable to Parliament and to the Auditor General, just like any other government organization.
5. Government Policy and Decision-Making
Since the American and British committees are made up of elected instead of appointed members, they have a greater tendency to raise doubts or even to criticize, the policies and decisions of their governments.
In Canada such an approach would be unthinkable. SIRC has no mandate to endorse or criticize the decisions of the Government. Instead, we exist solely to determine whether CSIS's performance, strictly speaking, complies with the law. The Committee does not intervene in Government policy, nor in its decision-making process.
6. Access to Information
Another point of comparison is the access to information granted to oversight and review bodies.
While SIRC has the absolute authority to examine all information concerning CSIS activities, with the exception of Cabinet confidences, the British Committee is subject to much greater restrictions in terms of the information to which it has access. While the Committee may request ‘information', it does not have the power to demand particular documents.
7. Public Reports
Both SIRC and the British Committee are required by law to produce an Annual Report. However, while SIRC's report is tabled before Parliament without any changes, the British Committee submits its report to the Prime Minister. Not only does he frequently request deletions on the grounds of national security, he also determines the timing of its publication (often when public attention is distracted elsewhere).
8. Limits on Review and Oversight
The last point of comparison is that in Canada, SIRC can only look at the activities of CSIS. Even though the Canadian Government has identified twenty-four departments and agencies with some connection to national security, writ large, SIRC's focus begins and ends with CSIS. This contrasts with the United States and United Kingdom, where their committees are responsible for looking at the activities of several intelligence services.
I should note, however, that the Canadian Government has announced its intention to create an independent, arm's length review mechanism for the RCMP's national security activities. Some of you are familiar with the case of Maher Arar, a Syrian-born Canadian citizen who was sent to Syria against his will by American authorities, where he was detained and tortured, and then allowed to return to Canada without ever having been charged.
A Commission of Inquiry was established to look into the role of Canadian officials in this case, and that same Commission has been asked to make recommendations on an appropriate RCMP review mechanism. The Commission is expected to report in March, 2006.
Committee of Parliamentarians
The last subject I want to talk about is the Canadian Government's proposal to establish a new Committee of Parliamentarians, to review CSIS and other departments and agencies involved in national security. While this Committee does not yet exist, it has been the subject of debate and consultation for almost two years.
I don't want to leave the impression that Parliament is not already involved in this area, because both our Senate and House of Commons have committees which deal with national security. However, when Canadian Prime Minister Paul Martin took office in December, 2003, he proposed the establishment of a “
Standing Committee” of Parliamentarians.
This was followed by the release of a Consultation Paper by the Deputy Prime Minister who also happens to be the Minister of Public Safety and Emergency Preparedness. Next, Parliament established an Interim Committee to consult and make recommendations.
Just one week ago, before Canada's Parliament adjourned due to the upcoming federal election, the Canadian Government introduced legislation to turn this promise into reality. The Government announced it will establish a “
Committee of Parliamentarians” with a mandate to review the legislative, policy and administrative framework for national security in Canada, as well as the activities of departments and agencies involved in this field.
The proposed Committee would have up to nine members, drawn from both the Senate and House of Commons, and including representatives from the Opposition parties. In many ways, it appears to be similar to the British model, because its Members will be appointed by the Prime Minister and it will report to him, rather than to Parliament directly.
It is worth noting that this new Committee will not have the same access to classified information now enjoyed by SIRC. Rather, the Canadian Government has promised to provide the Committee with the information “
required to fulfill its mandate” subject to restrictions or conditions which may be imposed by Ministers. This would specifically include “
information on a particular criminal investigation, national security investigation or operation or a military operation.”
One of the proposal's more interesting aspects is the change from the original concept of a permanent “
Standing Committee” to a “
Committee of Parliamentarians.” In Canada's system of government, a Standing Committee has all the rights and privileges accorded to Parliament under our Constitution.
Standing Committees can subpoena witnesses, place them under oath, hold them in contempt for failing to answer questions or withholding documents, and in theory, have the right to arrest and incarcerate those held in contempt.
Committee of Parliamentarians” on the other hand, is not actually a parliamentary body. According to noted Canadian political scientist Dr. Stuart Farson, it is actually part of the executive branch whose members happen to be Senators and Members of Parliament.
After the federal election in Canada, this legislation will need to be re-introduced and considered by a new Parliament. But clearly, when such a Committee is established, it will represent another important element in Canada's review and accountability structure for national security.
After more than two decades, I honestly think that most observers would acknowledge that Canada has a very effective system. In particular, I think that Canada's review bodies have helped to make CSIS a more professional and a more efficient intelligence service. Here is what the then-Director of CSIS said to a conference two years ago, hosted by the Canadian Association for Security and Intelligence Studies:
“Twenty years of constant review activity have resulted in many recommendations on how we could run things differently, and many of these recommendations have mirrored adjustments that have been made to the Service's management procedures. SIRC's comments have extended into the heart of how the organization is run, including matters of source-handling, investigative methods, targeting decisions and other core functions
Do we always share SIRC's views? No in some cases, yes in some . . . but that is not the point. The point is that the review process remains an ongoing debate on ways to ensure that the principles of the legislation are sustained as we evolve and adapt to new threats. That is what the legislators intended.”
SIRC's new Chair, the Honourable Gary Filmon, has been very clear about his expectations for the review function in Canada. He recently said: “
I want Canada to have a strong capacity to deal with terrorism and other threats to our national security, while at the same time maintaining an absolute respect for the rule of law.” This balance – of individual rights versus the security of the state, within a clear legal and policy framework – are what has allowed the Canadian model to stand the test of time.
And that, ladies and gentlemen, concludes my presentation. Thank you for your patience; I look forward to answering any questions you may have.
Security Intelligence Review Committee. Reflections: Twenty years of independent external review of security intelligence in Canada. Ottawa: Security Intelligence Review Committee, 2005.
Inspector General of the Canadian Security Intelligence Service. Website.
Security Intelligence Review Committee. Departmental Performance Report 2004-2005.
Office of the Prime Minister, “
Prime Minister announces Appointment of Cabinet,” news release, December 12, 2003.
Department of Public Safety and Emergency Preparedness Canada, “
Deputy Prime Minister details proposed model for National Security Committee of Parliamentarians,” news release, April 4, 2005.
Hans Born, Loch K. Johnson and Ian Leigh. Who's Watching the Spies? Establishing Intelligence Service Accountability. Dulles: Potomac Books, 2005.
Privy Council Office, “
Deputy Prime Minister Introduces Bill to Establish a National Security Committee of Parliamentarians,” news release, November 24, 2005.
Appearance by Ward Elcock, former Director of CSIS, to deliver the John Tait Memorial Lecture, annual meeting of the Canadian Association for Security and Intelligence Studies, Vancouver, October 16-18, 2003.
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