Review: Accountability Gaps

• Author: Craig Forcese; Kent Roach
• Pages: 399-448

399

CHAPTER TWELVE

Review: Accountability Gaps

I. INTRODUCTION

Debate on Bill C- often focused on whether its new powers would be

subject to adequate review. As we argue in Chapter , that discussion was

often muddled, confusing “review” with “oversight.” But the focus on review

— after-the-fact assessment or auditing of performance against prescribed

standards — was a vital one.

e government’s position was clear. Public Safety Minister Steven

Blaney repeatedly defended the existing review structure, and especially the

Security Intelligence Review Committee (SIRC) that reviews CSIS, as “the

envy of the world.” Defence Minister Jason Kenney stressed the importance

of judicial review, going so far as to argue that Bill C- “doesn’t give new

powers to police or intelligence agencies but rather to judges, to courts, who,

for example, can order the detention of a suspected terrorist for up to seven

days.”

Others in the government characterized enhanced review as “needless

red tape”

 and suggested that parliamentary review — a topic of considerable

discussion — handed “oversight” over to politicians. Justice Minister Peter

MacKay argued that parliamentarians could not be trusted with access to

secret information because they had leaked information about judicial ap-

pointments in the past.

But many others disagreed that Canada’s existing review structure was

adequate, let alone “the envy of the world.” Four former prime ministers —

Jean Chrétien, Joe Clark, Paul Martin, and John Turner — published open

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letters in La Presse and the Globe and Mail in February . ey argued

that “the lack of a robust and integrated accountability regime for Canada’s

national security agencies makes it dicult to meaningfully assess the e-

cacy and legality of Canada’s national security activities. is poses serious

problems for public safety and for human rights.” e former prime minis-

ters, joined by former judges, privacy commissioners, and members of SIRC,

noted that the government had not implemented either the  recommen-

dations of the Arar Commission for expanded independent review or earlier

Martin government proposals that would have given a statutory committee

of parliamentarians access to secret information. ey concluded that the

new powers in Bill C- meant “Canada needs independent oversight and

eective review mechanisms more than ever . . . .”

e extraordinar y letter prompted precisely no amendments to Bill C-.

e government did, however, double SIRC’s budget in an April  budget.

e new funding was welcome. It was needed to meet even SIRC’s regular

obligation to review CSIS’s intelligence activities, and needed even more ur-

gently given CSIS’s new powers at home and abroad under the  laws.

Nevertheless the increased funding did not deal with the fundamental

problem: SIRC still lacks statutory authority to exam ine the large number of

other federal agencies with which CSIS increasingly and sensibly works. In

the result, SIRC and counterparts reviewing the Communications Security

Establishment (CSE) and RCMP are able to review only part of the Can-

adian government’s national security apparatus. And when they do review

that narrow subset of bodies, they cannot collaborate in sharing secret infor-

mation or conducting joint review investigations.

In this book, we call the review bodies’ inability to work collaboratively

with each other the “silo” issue. We call Canada’s unfortunate pattern of lim-

iting specialized review to only three security agencies the problem of review

“stovepiping.”

“The Trail Is Not Going to Stop Nicely and Neatly at CSIS’s

Door . . . . You Come up to an Imaginary Wall . . . .”

e former prime ministers are not the only ones who have complained about

the inadequacy of review. SIRC has made no secret about the consequences

of siloed review when CSIS interacts with other agencies. In  Chuck

Strahl, then the chair of SIRC, warned:

once in a while, the trail is not going to stop nicely and neatly at CSIS’s

door. It blends not just into CSE . . . but also others. Other agencies, by

necessity nowadays, a re working closely with CSIS, and increasin gly we’re

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going to need some way of chasing thos e threads. Otherwise, we’ ll have to

tell parliamentarians that, as far as we can tell, everything looks great in

CSIS country, but we don’t know what happened over that fence; you’re

on your own.

Strahl elaborated:

we are increasingly ner vous or wary of the fact that you come up to an im-

aginar y wall, if you will, where we exami ne everything that C SIS does, but

now it involves other departments. It might involve a no-y list. It might

involve CBSA or CSE . . . , and so on, but our authority extends only to

CSIS in our review proce ss. So I think . . . the government would be, wise

to look at . . . how we can make sure that we don’t, when we’re chasing a

thread and tr ying to make sure that Can adians’ rights are being protected,

run up into the legislative wa ll of saying, “Well, yes, but you can only look

at CSIS, even if the new th read continues on into CSE . . . ,” as an example.

at is one thing I would encoura ge you to think about.

SIRC observations — repeated in several dierent ways in  — went

unacknowledged by the government. During the Bill C- debate, the gov-

ernment dismissed criticism of its inaction on review by pointing to the

all-of-government responsibilities of the Privacy Commissioner and the Auditor

General. It never addressed concerns that these bodies could not reasonably

be expected to review what is eectively national security writ large — their

subject matter responsibilities are very narrow and do not reach revie wing for

compliance with all law and policy.

e government’s condence in these agencies exceeded that of the re-

view bodies themselves. In a report released in early , the Oce of the

Privacy Commissioner commented on the inadequacy of its power to review

national security informat ion sharing powers, despite their signicant impact

on privacy. And like SIRC and other reviewers, the Privacy Commissioner’s

oce lacks the power to conduct joint investigations with other review agen-

cies even while the agencies that it is reviewing are increasingly conducting

joint operations. In other words, it too is kept to its silo.

“Canadian Legislators Are . . . Essentially out of the Loop . . . .”

Meanwhile, Canadian parliamentarians have complained that they are es-

sentially alone among Western democracies in being unable to access sec-

urity information classied as secret. Senator Hugh Segal argued that this

situation is unacceptable because it “means that elected Ca nadian legislators,

unless ministers, are essentially out of the loop, lacking and having no way