Review

• Author: Craig Forcese/Leah West
• Pages: 703-724

703

CH AP TER 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 arise s throughout the earlier chapters. We have examined, for

instance, judicial control by court s issuing authorizat ions, 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 t he 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 inquir y’s analysis of Canada’s national security review

mechanisms repre sents 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, w ith recommendations, to those in government politica lly

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

Rep ort ].

NATIONAL SECUR ITY LAW704

responsible for the organization.” Security agency actions “are usually

examined after t hey have occurred.” Further, “a review mechanism is

not responsible for carry ing out recommendations. It remains at arm’s

length from both the man agement of the organization being reviewed

and from the government.”2

In earlier chapters, we have regularly noted the role of review in

national securit y. We have discussed, for instance, the speciali zed

functions of the informat ion and privacy commissioners, and judicial

commissions of inquir y. In this chapter, we examine in detail Canada’s

two speciali zed independent review bodies, the National Sec urity and

Intelligence Review Agency (NSIRA) and the National Secur ity and

Intelligence Committee of Parliamentar ians (NSICoP). We begin, how-

ever, with a discussion of review and it s key ingredients.

PART I: REV IEW PRINCIPLES

The Arar Inquiry’s report identif‌ied several considerations favouring

a robust review mechanism for secur ity and intelligence bodies. Key

among these is the fact that national security act ivities

involve the most intrus ive powers of the state: electronic sur veil-

lance; search, s eizure and forfeiture of propert y; information collec-

tion and exchange w ith domestic and foreign secur ity intelligence

and law enforcement agencies; and, pote ntially, the detention and

prosecution of individu als. The use of such powers may adver sely

aect individua l rights and freedom s.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 obliv ious 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 cr im-

inal proceeding, adjudicated by an independent judge able to scrutinize

conduct.

Even where courts are implicated, their rev iew may be attenu-

ated, curtailed by special secrecy or other rules t hat constrain the full

2 Ibid.

3 Ibid at 425–26.