Proposal: an amendment to incorporate the current language of s.39 (1) of the CSIS Act where “the Review Committee may determine the procedure to be followed in the performance of any of its duties or functions”.
Rationale: SIRC has the authority to determine the procedure to be followed in the performance of any of its duties or functions (subsection 39(1)) of the CSIS Act. This process has been endorsed by the Supreme Court since Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR 711 at paragraph 49, 90 DLR (4th) 289 (Chiarelli). In addition, it is a well-recognized principle that administrative agencies are masters of their own procedure.
Proposal: amend the Act to include that the RCMP, like the Civilian Review and Complaints Commission (CRCC), has the obligation to refuse to investigate or to discontinue an investigation of a complaint related to national security and refer it to the Review Agency.
Rationale: Bill C-59 provides that the CRCC shall refuse to deal with a complaint concerning an activity that is closely related to national security and shall refer such a complaint to the Review Agency. Similarly, the CRCC shall discontinue and refer current investigations of that nature to the Review Agency. Because of the current wording of Bill C-59, only the CRCC (and not the RCMP) would have the obligation of referring complaints closely related to national security to the Review Agency.
Proposal: include a transitional provision that is similar to the current s.43 of the proposed legislation, namely that the CRCC shall discontinue a review of an activity related to national security and refer the review to the Review Agency.
Rationale: Bill C-59 provides that the CRCC does not have jurisdiction to conduct a review of an activity that is related to national security and that it shall refer any such matter that arises from a request by the Minister under section 45.34 or 45.35 of the RCMP Act to the Review Agency. A combined reading of the proposed new subsections 45.351(1) and (2) of the RCMP Act seems to lead to the interpretation that the CRCC can continue existing reviews related to national security that it commenced on its own initiative but that it will not be able to initiate new reviews related to national security.
Proposal: an amendment to Bill C-59 that provides that a complaint containing both allegations that closely relate to national security and allegations that are not related to national security shall not be severed and shall be dealt with by the Review Agency.
Rationale: Bill C-59 is silent with respect to the eventuality of a public complaint being made against the RCMP that contains a combination of allegations concerning police conduct, where some allegations may be closely related to national security and some do not. Section 13 of Bill C-59 provides that the Review Agency and the CRCC are to take all reasonable steps to cooperate with each other to avoid any unnecessary duplication of work. Consideration could be given to including exceptions (for example, the allegations shall not be severed unless the Review Agency and the CRCC agree to do so in the interest of efficiency).
Reviews
Proposal: an amendment to s. 31 (2) of the NSIRA Act to mirror s.40 (2) (a) of the CSIS Act when directing a department to conduct a study and reporting to the relevant Minister at the same time as the Review Agency. The requested language should read as the current language of s.40 (2) (a)
On completion of a review conducted under subsection (1), the Review Committee shall provide the Minister and the Director with the following:
(a) in the case of a review conducted by the Service, the Service’s report to the Committee along with any recommendations that the Committee considers appropriate;
Rationale: Paragraph 40(1) (a) of the CSIS Act allows SIRC to direct CSIS to conduct a review of specific activities. Once the review is completed, under s. 40 (2) (a), CSIS must provide SIRC with the report. SIRC then must provide the Minister and the Director the report that could include “any recommendations that the Committee (SIRC) considers appropriate”. When SIRC requests CSIS to conduct a review, SIRC views CSIS as a proxy. For instance, SIRC recently requested CSIS under s.40 to conduct a review of their human source program (this s.40 request is discussed in the SIRC 2015-2016 Annual Report). The reason for this request was due to the resources that would be required of both SIRC and CSIS for this review, if SIRC were to undertake the task on its own.
General
Proposal: an amendment to remove the reference to a minimum number of members to form a quorum.
Rationale: NSIRA will consist of a Chair and no fewer than three and no more than six other members. Should the membership ever be less than three, NSIRA would not have quorum to fulfill its mandate. By removing the minimum number of members required, s.22 of the Interpretation Act would set out how quorum is established. In the past, SIRC had found itself with only three members, which presented a risk of falling below quorum.
Proposal: s.9 (1) and 10 of the NSIRA Act mirror that language of s.39 (1) and (2) of the CSIS Act regarding the access to information by adding to section 9 (1) “Despite any other Act of Parliament or any privilege under the law of evidence”.
Rationale: Bill C-59 seems to provide for a more narrow entitlement in the context of the Review Agency’s functions. We recommend that the Review Agency’s entitlement to access information be the same as what was written in the CSIS Act. Under the current wording of the CSIS Act, SIRC’s access to information in the context of reviews is extended to any information under the control of any department, save for cabinet confidences.
Proposal: explicit wording on the immunity clause for members and employees to bring the Review Agency more in line with similar bodies.
Rationale: Recognizing that immunity from civil liability as well as protections against witness compellability exist in common law, the proposed language does not include an explicit immunity clause for the members and employees of NSIRA. We note other federal legislation (e.g. Auditor General Act, Public Servants Disclosure Protection Act as it relates to the Public Service Integrity Commissioner, RCMP Act as it relates to the Civilian Review and Complaint Commission for the RCMP) does explicitly grant immunity to members and employees.
