Speech to the Dutch Symposium
The Honourable Gary Filmon
Chair, Security Intelligence Review Committee
Dutch Symposium: Accountability of Intelligence and Security Agencies and Human Rights
The Hague, The Netherlands
June 7, 2007
First, let me thank the organisers of this symposium for inviting me to be here today. It is a great honour to speak to such a distinguished audience.
As some of you may know, this is actually the second international symposium on intelligence review and oversight. The first was held in Canada in May, 2005 and was co-hosted by the Security Intelligence Review Committee or “
SIRC” – the organization which I Chair. Given the rapidly changing terrorist threat environment worldwide, I am very pleased that our Dutch counterparts decided to hold another symposium here in Europe. Perhaps some of you in the audience will go home with a desire to plan a third symposium!
My role as SIRC's Chair affords me a unique perspective on today's panel discussion dealing with different forms of review and oversight and the ways in which democratic governments can protect national security while safeguarding human rights. Although I do not pretend to know all of the answers to these complex and very difficult issues, I hope that my presentation will stimulate further discussion.
Before we begin, I would like to acknowledge my co-panelists Mr. Myjer and Professor Cameron, who spoke about national security accountability at the 2005 symposium. It is truly a pleasure and an honour to join them on today's panel discussion.
The McDonald Commission
In order to discuss the Canadian model of security intelligence review, I would like to begin by taking you back more than thirty years. It was a time of great turbulence. Canada was grappling with a violent separatist movement in Quebec featuring a number of bombings, kidnappings and murders, which left Canada's Security Service then part of our national police force - to counter these very dangerous threats to public safety. In this context unfortunately several illegal activities were carried out by the Security Service. Once they were exposed by the media, the government of the day came under enormous pressure to ensure that such abuses would never happen again.
This led to the establishment of the McDonald Commission, an independent inquiry which recommended that Canada create a civilian security intelligence service, separate and distinct from its national police force. The new Canadian Security Intelligence Service or CSIS, would collect intelligence to advise the government on threats to national security, while law enforcement agencies would have primary responsibility for the prosecution of national security and other criminal offences.
With the passage of the CSIS Act in 1984, Canada became 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 - a framework that by and large, has stood the test of time. Specifically, the CSIS Act described in detail how the Service's work is to be monitored through a rigorous system of political and judicial controls, including two bodies - each with a distinct mandate - to watch over the new agency.
The first body is the Inspector General of CSIS. The Inspector General is an internal review body that provides Canada's Minister of Public Safety with a knowledgeable set of “
eyes and ears” on CSIS operations. In effect, the Inspector General acts as an early warning system for the Minister, to ensure that anything illegal or worrisome is quickly brought to the Minister's attention. By using the word “
internal”, I am drawing attention to the fact that the Inspector General is part of the Minister's own bureaucratic apparatus but is independent of CSIS itself.
Security Intelligence Review Committee
The second body - of which I am the Chair - is the Security Intelligence Review Committee or SIRC. SIRC is an external review mechanism that does not report to any Minister, but directly to Parliament and therefore ultimately to all Canadians. SIRC is fully independent in what it chooses to examine and how it goes about its work.
However, SIRC's mandate is limited to reviewing CSIS, which can sometimes be problematic when other federal departments or agencies are also involved in a particular activity or investigation.
SIRC's role is relatively easy to describe, if rather complex to execute. The Committee has two basic functions: 1) to conduct reviews into CSIS operations; and 2) to investigate complaints against CSIS. SIRC has, in law, the absolute authority to examine all of the Service's activities and has full access to all of its files, no matter how highly classified that information may be. The sole exception is Cabinet confidences, which is to say deliberations among Ministers.
Our reviews are done by assessing the Service's activities and operations 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 policies.
In each of its reviews, the Committee examines several essential questions, such as:
- 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 partners comply with the agreements and caveats that govern information-sharing?
- And last but not least, did the Service's investigation respect the rights and freedoms of individuals who were involved in lawful activities such as protest or dissent?
Normally, our reviews take several months to complete and involve examining thousands of pages of documents. Once a review is completed, copies are sent to the Director of CSIS and the Inspector General; in some special cases, we send our reviews directly to the Minister of Public Safety. Declassified summaries, with any national security and privacy concerns removed, are also included in SIRC's Annual Report to Parliament. Since its creation, SIRC has completed 168 reviews, which contained 383 recommendations.
SIRC also investigates complaints about CSIS brought by individuals or groups. These complaints can be about “
any act or thing done by the Service;” denials of security clearances to federal government employees and contractors; 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 accepts jurisdiction, the complaint is investigated through a quasi-judicial hearing presided over by one or more Committee Members, whose role is similar to a judge. At the conclusion of the investigation, SIRC issues reports containing findings and recommendations to the Minister, the Director of CSIS and in some cases, the Deputy Head of the government department involved. We also provide a declassified report on our investigation to the complainant. To date, SIRC has issued 125 written complaints reports.
As far as SIRC is concerned, having review and complaints under one body has proven advantageous. Our reviews give us the expertise to evaluate and investigate complaints more fully; at the same time, complaints give us another “
window” on CSIS operations, particularly their impact on the lives of ordinary Canadians. In some jurisdictions, these functions are kept separate; but Canada's experience suggests that there are real benefits in having them under one roof.
Whether we are speaking about reviews or complaints, SIRC's recommendations are non-binding. The scheme that Parliament created was not meant to have SIRC substitute for either the Director of CSIS, who is accountable to the Minister; or for the Minister, who in the Canadian system is accountable to Parliament. Nevertheless, CSIS has implemented the majority of SIRC's recommendations and has publicly acknowledged that SIRC has made it a better organization over the years. In late 2003, then CSIS Director Ward Elcock said at a major public conference, and I quote:
“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.”
And over the years, Canadians have come to feel that SIRC has an important role to play in ensuring the democratic accountability of one of our country's most powerful institution. In April 2006, public opinion research was published on Canadians' awareness and attitudes towards review bodies in general, and SIRC in particular. Over two-thirds of Canadians who responded (69%) said that it was “
very important” that there is a review body that monitors the activities of CSIS. Moreover, 65% believed that SIRC had made a difference to a “
moderate” or “
high extent” in the way CSIS operates.
Canadian Charter of Rights and Freedoms
As I mentioned earlier, SIRC's key objective is to ensure that CSIS complies with the law and therefore does not undermine Canadians' fundamental rights and freedoms. In Canada, the concept of human rights is anchored in our Constitution by the Canadian Charter of Rights and Freedoms, which celebrates its 25th anniversary this year.
Most of the rights and freedoms enshrined in the Charter in 1982 were not totally new; indeed, Canadians had enjoyed many of them as a matter of practice over the years. They derived from federal legislation, international treaties to which Canada is a party as well as common law jurisprudence. With the adoption of the Charter, however, these rights and freedoms became guaranteed in Canada, meaning that all federal and provincial laws must respect these freedoms. Canadians also gained the power to appeal to the courts if they felt that the state had infringed upon or denied their Charter rights.
The Charter offers protection for everyone in Canada of certain basic rights and freedoms essential to maintaining our free and democratic society. It guarantees four fundamental freedoms.
- freedom of conscience and religion;
- freedom of thought, belief, opinion and expression, including freedom of the press;
- freedom of peaceful assembly; and,
- freedom of association.
It also provides everyone with basic legal rights, such as the right to life, liberty and security; the right not to be arbitrarily detained or imprisoned; the right not to be subjected to any cruel and unusual treatment or punishment; and the right to be protected from unreasonable search and seizure.
That said, Canada's Charter also provides that these rights may be subject to such “
reasonable limits” as “
can be demonstrably justified in a free and democratic society”. In other words, the government may legally limit an individual's Charter rights; this limitation clause has been used in the last twenty-five years to prevent a variety of objectionable conduct such as hate speech and obscenity. It has also been used to define these limits in order to protect Canadians from unreasonable interference by government. This limitation clause is not unique to Canada's Charter; the European Convention on Human Rights, for example, sets out several similar limitations.
In the performance of SIRC's duties, we often find ourselves considering Charter issues. For example, individuals have complained to SIRC that their immigration or citizenship interviews were improper because CSIS agents had questioned their religious views or their association with certain groups. Also, as part of our reviews, we regularly examine the Service's execution of judicially-authorized warrant powers to ensure that these intrusive investigative techniques comply with the law and the terms of the Court, and therefore, do not constitute unreasonable search and seizure.
Whether investigating complaints or conducting reviews, SIRC always attempts to balance individual rights with the state's interest in ensuring national security.
Canadian courts have recognized SIRC's contribution in balancing national security and fundamental justice. In February of this year, Canada's Supreme Court ruled on the security certificate system, which allows the Federal Government to detain without charge or trial permanent residents and non-citizens who are suspected of being a threat to national security. I should point out that this system is not used frequently; in fact, there are only five individuals currently subject to such certificates, and only one of them remains in detention. In its ruling, the Supreme Court found that our security certificate system was inconsistent with the Charter. Specifically, it said that security certificates infringed on an individual's right to life, liberty and security because the process, which allowed for the use of secret evidence and does not provide for a prompt hearing, violated the principles of fundamental justice. The Supreme Court gave the Federal Government one year to rewrite the legislation to rectify these deficiencies.
In its decision, the Supreme Court drew attention to the merits of SIRC's procedure of having independent, security-cleared counsel represent the interests of complainants when they must be excluded from a hearing room for security reasons. SIRC's counsel is expected to cross-examine CSIS witnesses with “
as much vigour as one would expect from the complainant's counsel.” Once the ex parte portion of the hearing is concluded, the complainant is given a summary of the hearing, which provides as much information as possible without disclosing national security information. In this way, SIRC strives to ensure the kind of procedural fairness guaranteed under Canada's Charter.
SIRC also strives to approach its work in an objective, fair and balanced way. We recognize that in a free society, we have to use every available resource to counter threats to our national security, the most significant being terrorism. But at the same time, we must uphold the principles of accountability, fairness, absolute adherence to the rule of law and respect for individual rights. As I have stated on previous occasions, the demands of public safety and our democratic values are not in conflict with each other; rather, they are complementary. Moreover, individual rights are meaningless without real and lasting human security.
I will admit that this task has become more challenging since 9/11, as allegations of human rights abuses in the name of fighting terrorism have surfaced in many countries. Canada has not been immune to such controversy. The case of Maher Arar, which SIRC reviewed before the Federal Government appointed a separate Commission of Inquiry, serves as a case in point. More recently, another Commission has been established to look into the cases of three men, who have made similar allegations that Canadian officials were implicated in their detention and torture abroad.
It is clear that western democracies must ensure that collective security should not come at the expense of our rights and freedoms. Actions to combat terrorism and the protection of human rights and fundamental freedoms are not mutually exclusive; in fact, they should reinforce each other.
Let me conclude by saying that Canada wants to have a strong capacity to deal with terrorism and other threats to our national security. But at the same time, SIRC exists to make sure that CSIS operates within the rule of law.
I take great pride in the fact that Canada's accountability mechanisms, my Committee among them, have helped to make CSIS a more professional and a more diligent organization - in doing so, we have helped to protect Canadians' fundamental rights and freedoms. This objective has become even more important since 9/11, as we struggle to preserve our free and open society while defending ourselves against threats to our security.
Thank you for your attention and I look forward to answering any questions that you may have.
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