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The Security Intelligence Review Committee (SIRC or the Committee) has the legislative mandate to investigate complaints concerning the Canadian Security Intelligence Service (CSIS or the Service) made by both individuals and groups. Before describing the types of complaints which SIRC handles, it is important to have a general understanding of how the process works.
Almost all complaint cases begin as inquiries to SIRC - either in writing, in person or by phone. SIRC staff respond immediately to such inquiries, usually instructing the prospective complainant about what the law requires for their concern to become a formal complaint. Once a written complaint that conforms with these criteria is received, SIRC conducts an initial review that includes any and all information that might be in the possession of CSIS.
Where appropriate, complaints are investigated through a quasi-judicial hearing presided over by a Committee Member assisted by staff. In exercising its statutory jurisdiction regarding complaints, the Committee has all of the powers of a superior court. A complainant has the right to be represented by counsel and to make representations at the hearing. Pre-hearing conferences may be conducted with all parties to agree on preliminary procedural matters, such as the allegations to be investigated, the identity and number of witnesses to be called and the production of documents in advance of a hearing. Provided that no issues of national security are raised, pre-hearing conferences can be conducted by telephone.
Section 48 of the CSIS Act provides that SIRC hearings are to be conducted "in private" and no one is entitled as of right to be present. During the actual hearings, the Committee's Senior Counsel provides legal advice to Members on procedural and substantive matters and will also cross-examine CSIS witnesses when, for national security reasons, evidence must be heard in camera, ex parte (behind closed doors, without the complainant being present). SIRC and CSIS have adopted the principle of continuing disclosure, as provided for in both the Federal Court Rules and the Canadian Human Rights Tribunal’s Rules. This allows new documents to be introduced as evidence, at any time before a decision is rendered. It should also be noted that due to the need to safeguard highly sensitive information, no cell phones or personal communications devices are allowed in the hearing rooms, and parties wishing to use laptop computers to take notes of the proceedings, can only use equipment provided by SIRC.
At the completion of a hearing, if the Committee determines that the Service acted appropriately, the complainant is advised in writing of this finding, once any information with national security implications is removed. If the Committee identifies issues of concern, it sends a report which includes findings and recommendations to both the Minister and the Director of CSIS (under Section 41 complaints). Summaries of these reports, edited to protect national security and the privacy of complainants, are also included in SIRC’s Annual Report to Parliament.
It should be noted that not all complaint cases result in a formal hearing or written report. In some cases, the complainant may not have complied with the requirements of the CSIS Act, for example, by first complaining in writing to the Director of the Service. Others may not be within the Committee's jurisdiction in which case the complainant is so advised. Still others may be addressed by administrative action, or the complainant may be re-directed to another government organization. And in other cases, the complainant may decide to withdraw his/her complaint, resulting in the file being closed.
Types of Complaints
The types of complaints which SIRC investigates are described in the CSIS Act and take several forms. Under Section 41, SIRC can investigate "any act or thing” done by the Service; while under Section 42, it can hear complaints about denials of security clearances to federal government employees and contractors. The CSIS Act also gives SIRC the authority to conduct investigations into matters referred to the Committee pursuant to the Canadian Human Rights Act and the Citizenship Act. A brief description of each type of complaint follows.
Complaints about CSIS Activities
Under Section 41 of the CSIS Act, SIRC investigates complaints made by "any person" with respect to "any act or thing done by the Service." Before the Committee investigates, however, two conditions must be met:
- the complainant must have first complained in writing to the Director of CSIS, and have not received a response within a period of time that the Committee considers reasonable, or the complainant must be dissatisfied with the Director’s response; and
- the Committee must be satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith.
Under subsection 41(2), the Committee cannot investigate a complaint that can be channeled through another grievance procedure under the CSIS Act or the Public Service Staff Relations Act. However, these conditions do not prevent the Committee from investigating cases and making findings and recommendations where individuals feel that they have not had their complaints answered satisfactorily by CSIS.
Complaints about Security Clearances
Under Section 42 of the CSIS Act, SIRC can investigate any matter having to do with security clearances. This is because CSIS is responsible for conducting investigations and providing security assessments on behalf of federal departments for the processing of security clearances. Security clearances are provided to both employees and contractors and permit access to classified information on a need to know basis. There are three types of security clearances: Confidential, Secret and Top Secret.
It is important to note that SIRC does not hear complaints concerning the background screening or reliability checks done to determine the trustworthiness and suitability of a potential federal employee. This process, which usually involves reference checks, verification of qualifications and, often, credit and criminal history checks, determines whether or not an individual receives Basic Reliability or Enhanced Reliability status. SIRC has no authority to hear complaints in these matters.
Complaints about security clearances can be made to the Committee by:
- a person refused federal employment because a security clearance has been denied;
- a federal employee who is dismissed, demoted or transferred, or denied a promotion or transfer for the same reason; and
- anyone refused a contract to supply goods and services to the government for the same reason.
Under the CSIS Act, individuals who have been denied a security clearance must be informed of this action by their Deputy Head. Individuals then have the right to make a complaint to SIRC, and where appropriate, SIRC will investigate and make written recommendations about the validity of the complaint.
Following a hearing, the Committee will report its findings, and any recommendations, to the Minister, the Director of the Service and the Deputy Head. The Committee also provides the complainant with a report of its findings, taking into consideration the obligation to protect sensitive information.
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As a consequence of the Supreme Court's Thomson decision ([1992] 1 S.C.R. 385), the Committee only has the legislative authority to make a recommendation to grant or reinstate a security clearance, but this recommendation does not have to be followed by the Deputy Head. However, in the event of a disagreement, the Deputy Head must consult with the Privy Council Office, which will then review the issue. Deputy Heads must also inform the Chair of the Committee of their final decisions in writing.
Referrals under the Canadian Human Rights Act
In the event that the Canadian Human Rights Commission receives a complaint that relates to the security of Canada, the Commission may refer the matter to SIRC. Upon receipt of such a referral, the Committee carries out an investigation and reports its findings to the Commission, the respondent and the complainant.
Reports pursuant to the Citizenship Act
If the Minister responsible for Citizenship is of the opinion that a person should not be granted citizenship, or should be issued a certificate of renunciation of citizenship, because there are reasonable grounds to believe that the person will engage in activities that constitute a threat to the security of Canada or organized criminal activities, the Minister may make a report to SIRC. Upon receipt of such a report, the Committee carries out an investigation and reports its findings to the Governor in Council. |
