Values of Security Service Accountability
| Jurisdiction | Canada |
| Author | Craig Forcese |
| Pages | 55-87 |
Values of Security Service
Accountability
Ecacy/eciency, legality, and necessity/proportionality are stan-
dards of security service behaviour. Holding services to these stan-
dards requires a separate set of values. In Chapter , I discussed the
importance of democratic regulation — that is, a form of regulation
aimed at controlling the regulated entity so that it conforms with the
expectations of a democratic state — and in the Canadian context, a
liberal democratic state. Recall that democratic regulation includes
holding the regulated entity accountable. Accountability is “the obli-
gation to render an account of, and accept responsibility for, one’s
actions, both the results obtained and the means used.” However,
conventional tools of democratic regulation and accountability may
often perform poorly when extended to the security services. Much
national security activity takes place in secret, beyond the scrutiny of
conventional democratic accountability bodies.
At the same time, security services are expected to meet values of e-
cacy/eciency, legality, and necessity/proportionality, and a failure to do
so may have serious consequences for both security and liberty given the
considerable power these services wield. Put another way, the stakes are
high. In its national security system, Canada has adopted what I have
1 Auditor General of Canada, Matters of Special Importance — 2004 (November 2004) at 2.
| Fundamentals of National Security Accountability in Canada
called the “Spiderman rule”: with the great power of national security
and intelligence services comes great responsibility to meet standards of
accountability. Recognizing the contradiction between the power and
responsibilities of security services and the more attenuated ability to
hold them to account, Canada, like other democratic states, has created
a bespoke system of democratic regulation for security services.
In Table . at the end of this chapter, I provide a “taxonomy” of
the bodies constituting the Canadian national security accountability
community. Readers may wish to refer to it now to help understand
the rest of this chapter. is taxonomy reects my eort to partition
entities by function and to avoid, as much as possible, the baggage
associated with terms that are in popular use but have imprecise den-
itions (the most notorious example of which is “oversight,” which I use
narrowly, in keeping with dominant Canadian practice).
In Table . and in this chapter, I subdivide accountability-en-
abling values into control and scrutiny. I use “control” to describe
arrangements where bodies other than the services themselves (such
as ministers and courts) exercise control (of varying degrees) over ser-
vice activities. I further subdivide control into executive oversight and
judicial (or quasi-judicial) control. “Scrutiny,” in comparison, involves
assessment and evaluation of service activities by entities independent
of the service itself. It may be performed by regular accountability bod-
ies, like Parliament or the courts, but in the national security system
it often depends on specialized review bodies. e existence of these
review bodies responds to a key feature of the national security system:
the close hold on information concerning the activities of security ser-
vices. Review bodies exist to bridge the accountability gaps created by
this secrecy. us, before discussing this accountability structure, it is
important to examine in more detail another (implicit) value exhibited
by the Canadian national security system: bounded transparency.
I. BOUNDED TRANSPARENCY
As already suggested, any system of accountability depends on access to
information. Access to this information depends, in turn, on transpar-
ency. e National Security Transparency Advisory Group, discussed
Values of Security Service Accountability |
below, denes transparency as “ocial business conducted in such a
way that substantive and procedural information is available to, and
broadly understandable by, people and groups in society, subject to
reasonable limits protecting security and privacy,” something that the
group concludes requires not just the release of information but also
proactive community engagement.
Transparency responds to the fact that no one can be held account-
able for conduct no one else knows about. As former US Supreme
Court justice Louis Brandeis quipped, “Sunlight is said to be the best
of disinfectants; electric light the most ecient policeman.” And yet,
as the McDonald Commission noted:
Maintaining an acceptable system of government control and review
of security and intelligence activities poses a serious challenge to a
democracy. Among these activities, those related to security must, in
particular, often be conducted with great secrecy. erefore, it may
be dicult to provide direction and control in a manner which is
consistent with the principles of democratic government.
e free ow of information is a challenge in the best of circum-
stances, with bureaucracies traditionally parsimonious with trans-
parency. e struggle becomes particularly dicult when principled
reasons to withhold information augment the traditional government
reticence toward openness. Among security services, protecting sensi-
tive information — especially about sources and methods — is a core
2 National Security Transparency Advisory Group, “The Definition, Measurement, and Insti-
tutionalization of Transparency in National Security” (2021), online (pdf):
www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2021-dntn-msrmnt-trsprncy-ns/2021-dntn-
msrmnt-trsprncy-ns-en.pdf, at 5, citing Michael Johnston, “Good Governance: Rule of Law,
Transparency, and Accountability,” Colgate University, 2002.
3 Louis Brandeis, “Other People’s Money” Harper’s Weekly (20 December 1913).
4 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 Oce, August 1981), online: https://publications.gc.ca/site/eng/
471402/publication.html at 841 [McDonald Commission]. See also Special Committee
of the Senate on the Canadian Security Intelligence Service, Delicate Balance: A Security
Intelligence Service in a Democratic Society (November 1983) at 24, online:
https://parl.canadiana.ca/view/oop.com_SOC_3201_3_3/3?r=0&s=2 [Pitfield Report].
That committee noted, at 9, that while a security service does require some extraordin-
ary powers to perform their functions, “it must also be strictly controlled.”
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