Reflections - A History of SIRC

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AN OVERVIEW OF SIRC'S ROLE AND RESPONSIBILITIES

Established in 1984, the Security Intelligence Review Committee is an independent, external review body that reports to the Parliament of Canada on the operations of the Canadian Security Intelligence Service. The Committee was created, in part, to provide a balance against the significant and intrusive powers that were granted to the Service under the CSIS Act.

SIRC has two programs. The first is to conduct in-depth reviews of CSIS activities to ensure that they comply with the law, including the CSIS Act, and with the various policy and legal instruments that flow from it. The second is to receive and inquire into complaints by any person about any action of the Service.

Reviews of CSIS activities
To determine whether CSIS is in compliance with the law, SIRC conducts in-depth reviews of past operations of the Service. With the sole exception of Cabinet confidences, SIRC has the absolute authority to examine all information concerning CSIS activities, no matter how highly classified that information may be. Because much of this material is so sensitive that it must be reviewed on-site, the Service makes available a separate office and computers at CSIS Headquarters in Ottawa for the exclusive use of SIRC staff.

SIRC's reviews for any given year are designed to yield assessments across the range of CSIS activities. This approach helps to ensure that over time, the Committee has a comprehensive understanding of the Service's activities. Each review can include findings and or recommendations. The Committee's role is to advise and warn, so that the Service and those bodies of government that direct it, may take steps to modify policies and procedures accordingly.

Complaints about CSIS
SIRC's second responsibility is to investigate complaints. When SIRC accepts jurisdiction, complaints are examined through a quasi-judicial hearing presided over by a Committee Member assisted by staff. Complaints can be made by individuals or groups, and can take one of four forms:

1. complaints "with respect to any act or thing done by the Service" as described in the CSIS Act;
2. complaints about denials of security clearances to federal government employees and contractors;
3. referrals from the Canadian Human Rights Commission in cases where the complaint relates to the security of Canada; and
4. Minister's reports in respect of the Citizenship Act.

When SIRC investigates a complaint, it will make findings and any recommendations it considers appropriate. SIRC tries to release as much information as possible to the complainant, bearing in mind any national security and privacy concerns.

Annual report to Parliament
By examining past operations of the Service and investigating complaints, SIRC is able to make findings and recommendations designed to improve or correct the Service's performance. The results of this work, edited to protect national security and personal privacy, are summarized in its annual report to Parliament, which is usually tabled in October.

Legislative and policy framework
CSIS's activities are governed by a comprehensive legislative and policy framework, which provides the basis for determining compliance. The principle elements of this framework include:

• The Canadian Security Intelligence Service Act—Promulgated on July 16, 1984, the CSIS Act (and its subsequent amendments) are the founding legislation for both CSIS and SIRC;
• Ministerial Direction—This is the principal means by which the Minister exercises her or his authority over the Service as set out in Section 6 of the Act. Ministerial direction gives overall policy guidance to the Director of the Service and governs a wide spectrum of Service activities. All changes to Ministerial direction are reviewed by the Committee;
• National Requirements for Security Intelligence—Issued by the Minister each year, National Requirements direct CSIS where it should focus its investigative efforts and how it should fulfill its intelligence collection, analysis and advisory responsibilities;
• CSIS Operational Policy—This sets out for CSIS employees the parameters and rules governing the entire range of Service activities. CSIS operational policy is regularly updated to conform with changes in legislation and Ministerial direction. All revisions to operational policy are reviewed by the Committee to ensure that they conform with law and Ministerial direction.

It is important to note that the Committee examines CSIS's performance on a retrospective basis, that is to say, it examines the past activities of the Service. Its work is not intended to provide oversight of current CSIS activities. However, by preparing "snapshots" of highly sensitive CSIS activities over almost two decades, SIRC helps Parliament to determine whether CSIS is acting appropriately and within the law. The Service continues at all times to be accountable for current operations through the existing apparatus of government, specifically the Minister of Public Safety and Emergency Preparedness, the Inspector General of CSIS, central agencies of the federal government, the Auditor General, the Information Commissioner and the Privacy Commissioner of Canada.

HOW SIRC WORKS

At its monthly meetings, the Committee establishes priorities and reviews the work undertaken by its staff. Day-to-day operations are delegated to an Executive Director, with direction—when necessary—from the Chair. The Committee is supported by a small group of officials and administrative staff located in Ottawa. These individuals prepare material for the Committee's consideration, which is often so highly classified that it must be handled using special security procedures.

How SIRC reviews are conducted
The SIRC review process begins with the development of a research plan, approved by the Committee before the start of every fiscal year. Given the Committee's small size in relation to CSIS, it operates on the basis of risk management. It is not capable of examining all of the Service's activities in any given period and must carefully choose which issues to examine. A number of factors influence that selection, including shifts in the nature of the threat environment and the need to follow up on past Committee reviews.

Once the Committee has approved the broad research plan, staff resources are allocated for each review. A typical review requires hundreds of staff hours and is completed within four to five months. Thousands of pages of hardcopy and electronic documentation must be obtained from CSIS files, reviewed and analyzed. Briefings from and interviews of relevant CSIS staff are typically part of any SIRC review, as are field visits when a review involves a regional office or a Security Liaison Post abroad.

In almost all cases, the interviews and the examination of documents generate follow-up questions for the Service, to which detailed answers are expected. A report on the results of the review—always a classified document—is presented to the Committee at its monthly meeting. Sometimes, members will request that follow-up inquiries be made. Once finalized, the review document is provided to the Director of CSIS and the Inspector General, CSIS.

In addition to the review functions described in Section 38(a) of the CSIS Act, the Committee has additional authority under Section 54 of the Act. These reports, relatively rare in SIRC's work, are submitted directly to the Minister of Public Safety and Emergency Preparedness for consideration. Examples include the attack on the Iranian Embassy, the Air India tragedy and the Heritage Front Affair.

Every year, the Committee also conducts a series of reviews in a CSIS region. These cover: warrants; surveillance; targeting authorizations; community interviews and other matters. Regional reviews give SIRC an opportunity to examine how Ministerial direction and CSIS policy affect the day-to-day work of investigators in the field.

How SIRC complaints are investigated
Almost all complaint cases begin as inquiries to SIRC—either in writing, in person or by phone. SIRC staff respond immediately to such inquiries, usually instructing the prospective complainant about what the CSIS Act requires for their concern to become a formal complaint. Once a written complaint is received, SIRC conducts an initial review that includes all information that might be in the possession of CSIS.

Where a complaint does not meet certain threshold requirements, SIRC declines jurisdiction and the complaint will not be investigated. For example, a complainant may not have complied with the requirements of the CSIS Act— by first complaining in writing to the Director of the Service. Still others may be addressed by administrative action, or the complainant may be re-directed to another government organization. In other cases, the complainant may decide to withdraw his or her complaint, resulting in the file being closed.

If jurisdiction is established, complaints are investigated through a quasi-judicial hearing presided over by a Committee member, assisted by staff. In investigating complaints, SIRC has all of the powers of a superior court. A complainant has the right to be represented by counsel and to make representations at the hearing. Pre-hearings may be conducted to establish and agree on procedures with the complainant and/or the complainant's counsel. The Committee's Senior Counsel provides legal advice on procedural and substantive matters, and will also cross-examine Service witnesses when, for national security reasons, evidence must be heard ex parte (without the complainant being present).

At the completion of a hearing, SIRC prepares a report with findings, including any recommendations the Committee considers appropriate. This report is sent to both the Minister and the Director of CSIS. Any information with national security implications is removed from the version of the report that goes to the complainant. Summaries of these reports, edited to protect national security and the privacy of complainants, are also included in SIRC's annual report to Parliament.

Types of complaints
The types of complaints that SIRC investigates are described in the CSIS Act and take several forms. Under Section 41 of the Act, SIRC can investigate "any act or thing" done by the Service. Under Section 42, it can hear complaints about denials of security clearances to federal government employees and contractors. However, Section 42 does not permit the Committee to accept jurisdiction to hear complaints concerning less-intrusive background screening or reliability checks, which are generally conducted simply to determine the trustworthiness or suitability of a potential federal employee.

Under the CSIS Act, individuals who have been denied a security clearance must be informed of this action by their Deputy Head. These individuals have the right to make a complaint to SIRC, and where appropriate, it will investigate and report its findings and any recommendations to the Minister, the Director of the CSIS and the Deputy Head. The Committee also provides the complainant with a report of its findings, taking into consideration the obligation to protect classified information.

Should the Canadian Human Rights Commission receive a written notice from a Minister of the Crown about a complaint that relates to the security of Canada, the Commission may refer the matter to SIRC. Upon receipt of such a referral, the Committee carries out an investigation and reports its findings to the Commission, the respondent and the complainant. SIRC also has the authority to conduct investigations into matters referred to the Committee pursuant to the Citizenship Act.