Review Origins

AuthorCraig Forcese
 
Review Origins
As discussed in the previous chapter, the Federal Courts straddle the
control and scrutiny functions in this book’s typology of account-
ability mechanisms. In this chapter, I shift focus more fully to scru-
tiny that is, the assessment of security service activities by entities
independent of the service itself. e next two chapters examine
dedicated, standing agencies devoted to the scrutiny of security ser-
vices. Here, the focus is on specialized security or intelligence agency
review (and, since they overlap, complaints investigations) bodies. e
next chapter discusses the workings of Canada’s current review system
through an examination of the principles guiding that system. is
chapter describes the origin of national security review, best regarded
as the product of past security service controversies. In this respect,
the Canadian pattern replicates what Loch Johnson calls the “shock
theory” of accountability reform in the US intelligence community,
discussed in Chapter .
1 Loch Johnson, Spy Watching: Intelligence Accountability in the United States (New York:
Oxford University Press, 2018).
 | Fundamentals of National Security Accountability in Canada
A. The McDonald Commission Vision
Independent national security “review” originates with the McDonald
Commission. As discussed in Chapter , that commission responded to
institutionalized law-breaking by the RCMP Security Service during
the s. Its ndings led directly to the abolition of the RCMP Sec-
urity Service and Parliament’s constitution of CSIS through the 
Canadian Security Intelligence Service Act (CSIS Act). The McDonald
Commission also recommended that the newly reconstituted security
intelligence system in Canada be bolstered by an “Advisory Council
on Security and Intelligence.” is council’s role would be
to carry out a continuous review of security intelligence activities to
ensure that they are lawful, morally acceptable and within the statu-
tory mandate established by Parliament. Although it should not be
responsible for assessing the eectiveness of the security organization,
it should be fully cognizant and supportive of the functions of the
security intelligence organization as set out in its statutory mandate.
As this passage suggests, the council’s focus would be on the legality or
propriety of a service’s operations.
In performing these functions, the council’s review of service
operations was to be “strictly ex post facto,” a phrase the McDonald
Commission used in a functional sense: “[i]f the Council becomes
involved in advising on or, worse, approving operations before they
occur, it will be implicated in the agency’s operations and in eect
will be reporting on itself.” Still, these review ndings would, with
time, produce a body of caselaw “of considerable assistance to the
agency and those in government who are responsible for supervising
2 RSC 1985, c C-23 [CSIS Act].
3 Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian
Mounted Police — Second Report, Volume Two: Freedom and Security Under the Law
(Ottawa: Privy Council Oce, August 1981), online:
471402/publication.html at 884 [McDonald Commission].
4 Ibid at 899.
5 Ibid at 884.

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