Other Forms of Scrutiny

• Jurisdiction: Canada
• Author: Craig Forcese
• Pages: 237-255

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 

Other Forms of Scrutiny

e prior chapters have examined the scrutiny role played by the

courts (specically the Federal Courts) and specialized national secur-

ity review bodies. is chapter looks at other entities whose scrutiny

activities may implicate national security and intelligence matters: ad

hoc commissions of inquiry, Parliament, and ocers of Parliament

and other independent bodies. As this chapter discusses, each of these

entities suers from certain disadvantages when it comes to scrutin-

izing the security services. Indeed, were review bodies not to exist,

Canada would have a patchwork quilt of only partial scrutiny of the

security services.

I. COMMISSIONS OF INQUIRY

Occasionally, the governor-in-council (Cabinet) establishes ad hoc

independent commissions to probe particular public policy issues or

matters of public controversy, employing its powers to do so under the

Inquiries Act. Recent examples in the national security area include

the – Public Order Commission, established following the gov-

ernment’s use of the Emergencies Act in response to the  “freedom

1 RSC 1985, c I-11.

 | Fundamentals of National Security Accountability in Canada

convoy” occupation in Ottawa and border blockades; the –

O’Connor inquiry on “the actions of Canadian ocials in relation

to Maher Arar” (Arar Commission); the – Major inquiry into

the bombing of Air India Flight  (Air India Commission); and

the – Iacobucci internal or departmental inquiry concerning the

actions of “Canadian ocials in relation to Abdullah Almalki, Ahmad

Abou-Elmaati and Muayyed Nureddin” (Iacobucci Commission). e

Arar and Iacobucci commissions focused on information sharing by

Canadian agencies with foreign counterparts and the consequences of

that sharing for the detention and mistreatment of Canadians by that

foreign state. As discussed elsewhere in this book, the Arar Commission

proved especially relevant in assessing the state of Canadian national

security review. e Air India Commission examined the failure of

Canadian agencies to forestall and then properly investigate the 

bombing of Air India Flight , the worst act of aviation terrorism

before / and a massacre planned and set in motion on Canadian soil.

Commissions of less recent vintage include the  inquiry into

“certain matters pertaining to the deployment of Canadian Forces to

Somalia,” the  McDonald Commission into “certain activities of

the Royal Canadian Mounted Police,” and the  Mackenzie Royal

Commission on Security. e Mackenzie Commission and especially

the McDonald Commission responded to lapses and wrongdoing by

the security services then in operation. As discussed throughout this

book, the McDonald Commission provoked a thorough reorganiza-

tion of Canadian security intelligence and led directly to the creation of

the Canadian Security Intelligence Service.

A. Triggering Inquiries

Inquiries come in two forms: public inquiries and departmental inquir-

ies. Public inquiries are more common. Under the Inquiries Act, the

2 PC 2022-392 (25 April 2022).

3 PC 2004-0048 (5 February 2004).

4 PC 2006-0293 (1 May 2006).

5 PC 2006-1526 (11 December 2006).

6 PC 1995-0442 (20 March 1995).