Review: Accountability Gaps

AuthorCraig Forcese; Kent Roach
Review: Accountability Gaps
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 ag ainst prescribed
standards — was a v ital one.
e government’s position was clear. Public Safety Minister Steven
Blaney repeatedly defended the existing review structu re, 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
da ys .”
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 lea ked information about judicial ap-
pointments in the past.
But many others disagreed that Canada’s existing review struct ure was
adequate, let alone “the envy of the world.” Four former prime ministers —
Jean Chrétien, Joe Clark, Paul Martin, and John Turner — published open
letters in La Presse and the Globe and Mail in Februar y . ey argued
that “the lack of a robust and integrated accountability regi me for Canada’s
national security agencies ma kes 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 mechan isms 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 increa singly 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 c annot collaborate in sharing secret infor-
mation or conducting joint review investigations.
In this book, we call t he review bodies’ inability to work collaboratively
with each other the “silo” issue. We call Canada’s unfortunate pattern of lim-
iting specialized rev iew to only three security a gencies the problem of review
“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 tra il is not going to stop nicely and neat ly 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
Chapter Twelve: Review
going to need some way of chasing thos e threads. Otherwise, we’ ll have to
tell parliamenta rians that, a s far as we ca n tell, everyt hing looks great i n
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 lis t. It might
involve CBSA or CSE . . . , and so on, but our authority extends on ly to
CSIS in our review proce ss. So I think . . . the government would be, wise
to look at . . . how we can make sure t hat 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 polic y.
e government’s condence in these agencies exceeded that of the re-
view bodies themselves. In a report relea sed 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 t hat 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, Canadia n parliamentarians have complained that they are es-
sentially alone among Western democracies in being unable to access sec-
urity information classied a s 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

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