Review

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

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.