Review

AuthorCraig Forcese/Leah West
Pages703-724
703
CHAPTER 18
REVIEW
In this f‌inal chapter, we focus on the question of accountability how
are Canadian agencies held to account for their activities? Account-
ability arises throughout the earlier chapters. We have examined, for
instance, judicial control by courts issuing authorizations, e.g., for
interception of private communication, and the oversight responsibil-
ities of the intelligence commissioner under the CSIS Act and the CSE
Act. Many chapters have also noted the function of ministers in approv-
ing (or not) agency conduct. “Oversight” involves real-time operational
command and control over the conduct of an organization. In the most
basic sense oversight can be explained as the need to acquire a proverb-
ial “green light” from a body or oce before proceeding with a course
of action.
Ministers, courts, and the intelligence commissioner are, however,
not “review” bodies. Review is a retrospective (ex post) performance
audit.1 The Arar inquiry’s analysis of Canada’s national security review
mechanisms represents the most comprehensive treatment of this
issue in Canadian history. In its 2006 report, the Arar inquiry def‌ined
“review” as asse ssment of “an organization’s activities aga inst standards
like lawfulne ss and/or propriety.” Review bodies deliver a report of “that
assessment, with recommendations, to those in government politically
1 Canada, Com mission of Inquiry into t he Actions of Canadian Oc ials in Rela-
tion to Maher Ar ar, A New Revie w Mechanism for the RCMP’s National Securit y
Activities (Ottawa: Public S afety Canada 2006) at 456 –57 [Arar Inquir y, Policy
Report].
NATIONAL SECUR ITY LAW704
responsible for the organization.” Security agency actions “are usually
examined after they have occurred.” Further, “a review mechanism is
not responsible for carrying out recommendations. It remains at arm’s
length from both the management of the organization being reviewed
and from the government.”2
In earlier chapters, we have regularly noted the role of review in
national security. We have discussed, for instance, the specialized
functions of the information and privacy commissioners, and judicial
commissions of inquir y. In this chapter, we examine in detail Canada’s
two specialized independent review bodies, the National Security and
Intelligence Review Agency (NSIRA) and the National Security and
Intelligence Committee of Parliamentarians (NSICoP). We begin, how-
ever, with a discussion of review and its key ingredients.
PART I: REVIEW PRINCIPLES
The Arar Inquiry’s report identif‌ied several considerations favouring
a robust review mechanism for security and intelligence bodies. Key
among these is the fact that national security activities
involve the most intrusive powers of the state: electronic surveil-
lance; search, seizure and forfeiture of property; information collec-
tion and exchange with domestic and foreign security intelligence
and law enforcement agencies; and, potentially, the detention and
prosecution of individuals. The use of such powers may adversely
aect individual rights and freedoms.3
Moreover, unlike regular criminal investigations, national security
matters are deeply surreptitious and secret. As discussed in Chapter12,
Canada’s information access laws include many exemptions and an
exclusion for national security matters. Those who have been investi-
gated may be eternally oblivious to this fact, and in no position to com-
plain about misconduct. Not least, only a fraction of CSIS invest igations
produce information that may then culminate in evidence in a crim-
inal proceeding, adjudicated by an independent judge able to scrutinize
conduct.
Even where courts are implicated, their review may be attenu-
ated, curtailed by special secrecy or other rules that constrain the full
2 Ibid.
3 Ibid at 425–26.

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