Contemporary Review
| Jurisdiction | Canada |
| Author | Craig Forcese |
| Pages | 181-236 |
Contemporary Review
Beginning in , the government and Parliament rebuilt Canada’s
national security review system. is revamped system, spearheaded
by then–public safety minister Ralph Goodale, featured two key
developments:
• A new review body staed by parliamentarians, the National Sec-
urity and Intelligence Committee of Parliamentarians (NSICoP)
• A new review body superseding the Security Intelligence Review
Committee (SIRC), the Oce of the CSE Commissioner
(OCSEC), and the national security functions of the Civilian
Review and Complaints Commission (CRCC) (and competent
to review all government national security and intelligence func-
tions), the National Security and Intelligence Review Agency
(NSIRA)
is chapter examines this new system. However, rather than simply
outline the composition, powers, and structures of these new review
bodies, I weave that discussion into an examination of the principles
justifying this new post-Goodale review system.
| Fundamentals of National Security Accountability in Canada
I. DESIGN PRINCIPLES
As discussed in Chapter , security services are expected to meet values
of ecacy/eciency, legality, and necessity/proportionality, and a fail-
ure to do so may have serious consequences for both security and liberty
given the considerable power they wield. In its national security system,
Canada has adopted the principle that with the great power of national
security and intelligence services comes great responsibility to meet
standards of accountability. Control and some forms of scrutiny may
aim to accomplish the goals of ensuring security service compliance
with standards of propriety (and, less often, ecacy) while also con-
tributing to the cultivation of public trust. Unlike other forms of scru-
tiny, however, specialized national security review takes place within
the “secrecy tent”; that is, review bodies are entitled to access classied
information. is is a signicant innovation given the near impossibil-
ity of conducting meaningful scrutiny without access to information.
Meanwhile, two key features distinguish scrutiny conducted through
specialized national security review from control exercised by (typically)
ministers: functional distance and accountability force-multiplying.
A. Functional Distance
e statutes governing Canada’s review bodies do not generally limit
“review” to after-the-fact assessment of security and intelligence activ-
ities. Where statutes do oblige this timing consideration, it is available
in limited circumstances. us, NSICoP’s statute includes an express
carve-out for an activity relating to an ongoing operation, but only
where the appropriate minister determines that the review would be
injurious to national security.
In practice, review bodies (unlike controllers) generally examine
security or intelligence agency activities after those activities are com-
pleted or at least after they are under way. Review, it is sometimes
1 National Security and Intelligence Committee of Parliamentarians Act, SC 2017, c 15, s 2 at
s 8 [NSICoP Act].
2 Reg Whitaker & Stuart Farson, “Accountability in and for National Security” (2009) 15:9
IRPP Choices at 3 (“review is seen as scrutinizing institutional practices after the fact”).
Contemporary Review |
said, is retrospective, or ex post facto, as opposed to the typical ex
ante (before-the-event) role of control. However, this timing pattern
stems from review’s purpose, not from a xed rule. Specically, review
obliges functional distance from security services, guarding against two
dangers. First, review bodies must not insert themselves into chains of
command, with scrutiny bleeding into “implied approval” or at least
“implied approval with conditions.” Review bodies are not approval
bodies — they are auditors, not management or consultants. Auditors
who become consultants may unwittingly dilute the role of overseers
and provide cover to those overseers that debase the accountability
relationship between overseers and the services. In this manner, review
bodies would suer a fate about which the Arar Commission warned:
“A [review] body that engages in oversight might also lose some of its
independence from the [security service] and become implicated in
decisions that should be subject to independent review after the fact.”
As this observation implies, a mission creep in which review bodies
conduct pre-activity scrutiny also risks subsequent conicts of interest.
Where a review body is thereafter obliged to review the substance of
the activity undertaken by the service, it would be performing a form
of self-review, bound to, or at least biased by, its own role in its ex ante
scrutiny. at is, it would mark its own homework. As the McDonald
Commission warned, if a review body “becomes involved in advising
on or, worse, approving operations before they occur, it will be impli-
cated in the agency’s operations and in eect will be reporting on
itself.” ese circumstances would leave the implicated service activity
unreviewable, or at least unreviewable by a body exhibiting the degree
of independence typically required for credible review.
3 Canada, Commission of Inquiry into the Actions of Canadian Ocials in Relation to Maher
Arar, A New Review Mechanism for the RCMP’s National Security Activities (Ottawa: Public
Safety Canada, 2006) at 457, online (pdf): www.publicsafety.gc.ca/lbrr/archives/cn4052-
eng.pdf [Arar Commission].
4 Jessie Blackbourn, Fiona de Londras & Lydia Morgan, Accountability and Review in the
Counter-terrorist State (Bristol, UK: Bristol University Press, 2020) at 101.
5 Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian
Mounted Police — Second Report, Volume Two: Freedom and Security Under the Law
(Ottawa: Privy Council Oce, August 1981), online: https://publications.gc.ca/site/
eng/471402/publication.html at 884 [McDonald Commission]
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