Speeches and Presentations

Control, Accountability and Review:
The CSIS Experience
A Submission to the O'Connor Commission of Inquiry

Check against Delivery

February 21, 2005

Foreword

It is worth noting that approximately two thirds of the CSIS Act is devoted to outlining how the activities of CSIS are to be subject to both judicial control and external review. Specifically, the Act sets out a unique, complementary combination of two entities whose mandate it is to review the activities of the Service: the Security Intelligence Review Committee (SIRC) and the Office of the Inspector General (IG). The purpose of this submission is to describe briefly the extensive control, accountability and review provisions which control the work of CSIS. More importantly, this paper provides the CSIS perspective on, and a retrospective of, twenty years of review.

Most observations in this submission with respect to the Security Intelligence Review Committee would likewise apply to the Office of the Inspector General.

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I. Breaking New Ground: The CSIS Act & Review

In 1969, the Royal Commission on Security (the Mackenzie Commission) reported. Its principal recommendation was to establish a civilian agency, separate from the Royal Canadian Mounted Police, to assume the security intelligence function in Canada. The Commission, in considering effective "security methods and procedures", neither explored nor recommended mechanisms for independent, external-to-government review.

After four years of work, the McDonald Commission ⁽¹⁾ reported in 1981 and advanced, like Mackenzie, the central proposal for a civilian security intelligence service for Canada. McDonald did not content himself with narrow prescriptions for a legislated mandate and internal, or internal-to-government, mechanisms to ensure the new agency's proper functioning. The Commission Report made extensive recommendations for what it termed "External Controls". These included:

• the Federal Court, to deal with issues of disclosure and intrusive investigative techniques;
  
• a Security Appeals Tribunal, to hear appeals from denial of security clearances;
  
• an Advisory Council on Security and Intelligence, to be independent and arm's-length. Among other functions, it would conduct continuous, ex post facto review of policy and practices to ensure legality and propriety. It would have access to all information and files, investigate complaints in certain circumstances, and report to the Minister and a Committee of Parliament;
  
• a Joint Parliamentary Committee of the House and Senate, to monitor the "effectiveness and propriety" of the new Service. ⁽²⁾

In August, 1981, the Government responded to the McDonald Commission Report by announcing that the Security Service would be separated from the RCMP and established as a civilian security intelligence agency. A transitional group was set up to study the McDonald recommendations in detail and to develop specific plans for creating the new agency, giving paramount consideration to five basic principles. The last of these stipulated that the new agency must "be open to a satisfactory external review, ensuring that the agency does not abuse its powers and that it is not misused by government". ⁽³⁾

There followed nearly two years of intensive work by officials. The Cabinet Committee on Security and Intelligence, chaired by the Prime Minister, met several times to monitor progress and give guidance. The legislative phase was long, difficult and marked by:

• intense scrutiny and debate, both public and Parliamentary;
  
• the original Bill (C-157) stalling in the House on First Reading and, as rarely seen, its subject matter referred to a Special Committee of the Senate;
  
• extensive hearings by the Senate Committee and a public report calling for nearly four dozen amendments to Bill C-157;
  
• subsequent Cabinet consideration and the tabling (in January 1984) of revised legislation, Bill C-9;
  
• a further three months of hearings and study by the House Standing Committee on Justice and Legal Affairs.

Emerging from this process, Bill C-9 drew heavily on McDonald's Report and recommendations, accepting and validating the Commission's arguments in support of such proposals, leavened by the findings of the Special Senate Committee. And the resultant Canadian Security Intelligence Service (CSIS) Act, as McDonald had intended it should, accomplished far more than a mere charter for a security agency.

The CSIS Act established, in law, a comprehensive regime for the security intelligence function in Canada: a civilian agency with no executive remit; with clearly (and where appropriate, precisely) defined mandate and powers; subject to a rigorous, inter-related system of political and judicial controls; and, importantly, subject to independent, arm's-length review. The centrepiece of that system for accountability, control and review was and is the unique combination of the Security Intelligence Review Committee (SIRC) and the Inspector General (IG) - the former reporting, through the Minister, to Parliament; the latter, in a more specialized but complementary way, acting as the "Minister's ‘eyes and ears' on the Service". ⁽⁴⁾

The review provisions of the CSIS Act were, in 1984, unprecedented in the world of intelligence and security intelligence agencies. Today, they remain unsurpassed by any other system of review in terms of scope, function and access to the records and personnel of the agency (CSIS) under review. Why unsurpassed? A simple, encompassing statement from SIRC's first Annual Report provides an answer:

"...the Committee will need to know, in considerable detail, virtually everything that is being done by CSIS". ⁽⁵⁾

In combination with the Inspector General, SIRC represented a sea change in accountability for a security intelligence function whose activities were traditionally clothed in secrecy. In addition, the activities of the Service are, like those of other government departments and agencies, subject to the scrutiny of Officers of Parliament, namely the Auditor General, the Access to Information and Privacy Commissioners and the Commissioner of Official Languages.

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II. Review - A Brief Retrospective

More than twenty years of experience with CSIS Act-inspired review permits the Service to offer the following observations. Any candid assessment must accept the fact that the CSIS-SIRC and CSIS-IG relationships involved a long, sometimes adversarial period of introduction, mutual adjustment, accommodation and consolidation. It can be argued that the relationships - particularly between CSIS and SIRC - took almost a decade to fully mature and work well. Indeed, that coincides with the experience in the United States, where senior officials have opined that the same time period applied to acceptance and full functioning of their process, which can be best described as oversight, as opposed to review of activities.

With experience, the Service not only learned to accept the need for, and reality of, review as part of the business of security intelligence, but fully internalized that concept. A dual expectation emerged that SIRC would:

• report on instances of perceived unlawfulness, impropriety or over-zealousness; and, as well
  
• report on incidents in which the Service was mistakenly or unfairly accused and, absent SIRC, had no effective or objective means of public defence.

For its part, SIRC (and importantly, its permanent research staff) gradually became more attuned to, and conversant with, the complex world of security intelligence, and the challenges that complexity presented to the Service. Without compromising their duty for rigour and scepticism, the Committee and its staff in time moderated an early posture of aggressive mistrust that complicated their relationship with the Service and its employees.

Over that twenty-year period, some early myths were exploded, and some fears laid to rest, regarding the potential adverse effect of the CSIS Act provisions for review. The most important of these was a feared "chilling effect" on Service operational aggressiveness and initiative - the prospect of review encouraging a risk-averse and ineffective Service. Though such negative effect is almost impossible to measure, the number and success of Service investigations in that two-decade span suggest that this "effect" has not been significant - if it existed at all.

Similarly, concerns that comprehensive SIRC/IG access to Service files would cause nervous international partners and liaisons to restrict intelligence exchanges have not, in the long run, come to pass. Related worries about SIRC/IG ability to afford proper security to Service information and protect its human sources and sensitive collection methodologies have not been justified - "leakage" of classified information has not been a factor.

Finally, early and continuing concerns had been expressed about the resource-intensive consequences of review: the spectre of a Service so tied up in responding to review-generated demands that it would have little time for "real work".

While the Service does not quantify the "dollar costs" of review, the resource implications for supporting and responding to requests from the SIRC and IG are not inconsequential. Some general information may give an appreciation of the extent of CSIS' daily involvement in this responsibility.

Under the Assistant Director, Secretariat (ADS), reporting to the Director of the Service, the External Review and Liaison (ER&L) section currently has 10 officers responsible for liaison with a current total of 24 staff at SIRC and the IG. While ER&L has responsibility for managing all reviews undertaken by both organizations and identifying and retrieving of information for review, the formal responses to a large number of written enquiries and verbal briefings on various investigations are channelled through more than a dozen operational and technical Branch coordinators within the Service's Headquarters and in the six Regional offices. About sixty-five percent of the Branch coordinators' time is spent on responding to requests related to SIRC and IG studies.

The CSIS Act also authorizes SIRC to hear complaints on any action of the Service (s.41) and on the denial of a security clearance (s.42). If the Committee determines that the complaint should proceed to a formal hearing, the Service is required to present testimony through CSIS witnesses and legal counsel - a resource-intensive undertaking.

Both review bodies travel to CSIS Regional offices regularly to conduct interviews of CSIS employees and to obtain information on investigative activities in the regional environment. SIRC and the IG undertake an annual audit of a Regional office, which typically sees three to six reviewers conducting interviews in a Region over a three- to five-day period - a concentrated exercise which occupies a large number of Regional resources. Additionally, a three-day audit of one of the Service's foreign liaison posts is done yearly by SIRC.

Liaison with SIRC and the IG takes place at all levels, and includes regular meetings with the senior management and Executive members of the Service. Over the course of a year, the Committee meets with the Director at least twice, in addition to meeting with two or three Regional management teams. Those meetings are formal in nature, with the Committee supplying a series of questions to the Region in advance, and spending a half-day with the Regional management team. The Inspector General meets annually with Regional Directors General and their management teams, and with the majority of Directors General in Headquarters.

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III. SIRC and the IG - Their Role and Practical Effect

The following section provides some insight into the day-to-day activities of the review bodies and the measures they take to fulfill their function.

CSIS Act s.38 sets out the fundamental function of the SIRC: "to review generally the performance by the Service of its duties and functions" and, in s.40, the purpose of such review: "ensuring that the activities of the Service are carried out in accordance with [the] Act, the regulations and directions issued by the Minister.... and that the activities do not involve any unreasonable or unnecessary exercise by the Service of any of its powers, ..." ⁽⁶⁾

Twenty years of reviewing CSIS work have focussed SIRC methodologies and work plans. In concert, these are designed so that - over time - there are no Service corners into which the light of review has not shone. In choosing activities on which yearly, detailed reviews will concentrate, SIRC "takes into consideration such matters as the scope and importance of CSIS investigations, the potential for particular activities to intrude on individual rights and liberties, priorities and concerns for Parliament and the Canadian people, the CSIS Director's report on operational activities, and the importance of producing regular assessments of each of the Service's branches. Each report is the result of a detailed review of CSIS documents, interviews with Service staff and senior managers, and an assessment of the Service's actions in relation to applicable laws, policies and Ministerial Direction". ⁽⁷⁾

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That approach is augmented by additional factors:

• world events and their impact on threats to the security of Canada;
  
• trends or concerns identified in previous Committee reports;
  
• commitments by the Committee to re-examine specific issues or investigations;
  
• issues identified in the course of the Committee's complaints function;
  
• new policy directions or initiatives announced by the Government of Canada; and
  
• the Committee's statutory duties under the CSIS Act. ⁽⁸⁾

SIRC reviews in the last two reporting years (2002-03 and 2003-04) are instructive in demonstrating the encompassing reach of the Committee. During that two-year span they examined, in detail:

• CSIS Front-End Screening Program for Refugee Claimants;
  
• Section 12 (CSIS Act) Operational Activity Outside Canada;
  
• a Counter Intelligence (CI) Investigation;
  
• a Counter Proliferation (CP) Investigation;
  
• Liaison with Foreign Agencies - A Review of a Security Liaison Post;
  
• an Internal Security Breach in a Regional Office;
  
• An (Annual) Review of Foreign Arrangements;
  
• the Ressam Case;
  
• Sunni Islamic Extremism - A Review of a CSIS Regional Investigation;
  
• Domestic Threats in Conjunction with Lawful Advocacy, Protest and Dissent;
  
• Collection of (s.16 CSIS Act) Foreign Intelligence. ⁽⁹⁾

The SIRC examination of the CI & CP investigations bears comment. In their review of specific operational cases, the Committee employs a standard methodology refined over two decades. In such cases, they assess Service compliance with the CSIS Act, Ministerial Direction and CSIS Operational Policy by concentrating on key operational activities:

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• targeting decisions and investigations;
  
• implementation of warrant powers and special operations;
  
• management of human sources and sensitive operations;
  
• cooperation and exchanges of information with domestic partners;
  
• cooperation and exchanges of information with foreign partners; and,
  
• advice to government. ⁽¹⁰⁾

All of that to the end of determining whether:

• the Service had reasonable grounds to suspect a threat to the security of Canada [i.e. an "investigative threshold" test ⁽¹¹⁾ ]
  
• the level of intrusiveness of the investigation was proportionate to the seriousness and imminence of the threat [i.e. a "proportionality" test ⁽¹²⁾ ] and
  
• the Service collected only that information strictly necessary to fulfill its mandate to advise the Government of a threat [i.e. the test of "necessity" ⁽¹³⁾ ] ⁽¹⁴⁾

In addition to the conduct of such in-depth reviews, SIRC monitors Service "Plans and Priorities", particularly in respect of the major Operational and Analytical Branches (Counter Terrorism; Counter Proliferation; Counter Intelligence; Security Screening [including Citizenship & Immigration Screening]; and, Research, Analysis & Production). This is accomplished through extensive oral and written briefings, and also allows the Committee to fulfill its s.38(a)(vii) CSIS Act requirement to compile and analyse statistics on Service operational activities. All of this in addition to SIRC's responsibility to hear public complaints against CSIS which, in terms of comprehensiveness, importantly includes complaints "with respect to any act or thing done by the Service". ⁽¹⁵⁾

It is also worth noting that SIRC's work plan is, each year, paralleled by that of the Inspector General who - quite separately - pursues her own examination of the Service's activities to determine their compliance with law and policy. In the Certificate of November 2003, the Inspector General's annual program of review activities was summarized:

• reviews of samples of warrants and targets, as well as of human source management;
  
• detailed examinations of investigations of the threat posed [- -];
  
• review of section 16 intelligence collection;
  
• a special study of the Service's domestic liaison arrangements;
  
• comprehensive briefings on the front-end screening program of refugee claimants [- -]
  
• the regular discussions my assistant and I have had with senior management at Headquarters and in the field (Vancouver,
  Edmonton, Toronto, Montreal and Halifax). ⁽¹⁶⁾

As the Review Committee observed in its 1989-90 Annual Report, "not many public institutions get the kind of close attention that we give CSIS, or the publicity that goes with it. But independent review is the tradeoff for the powers that an intelligence agency has­and needs­to intrude on individual privacy for the sake of national security." In sum, the review provisions of the CSIS Act - embodied in the SIRC and the IG - have proven, over time, to have worked as Parliament intended. An uncompromising, non-shaded window on the Service, whose critical (or affirmative) voice is heard by responsible Ministers, Parliament and the public at large.

The Review Committee can - and has - articulated examples of how its scrutiny and subsequent reporting have influenced positive changes in Canada's security intelligence posture and landscape, benefitting Canadians and their security intelligence service. Those need not be repeated here.

The SIRC/CSIS relationship has best been characterized as one of healthy tension. The Committee has, within the context of its legislated responsibility, the duty to maintain its distance, scepticism and capacity for fully independent, critical audit: in short, its "watchdog's" teeth and credibility.

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IV. Other Controls

The controls exercised by SIRC and the IG do not comprise the sole check on Service activity. An extensive, multi-faceted system of internal controls and accountability operates to ensure the work of the Service is not just effective, but also in conformity with the law, Ministerial Direction and propriety, and is proportionate to the nature and seriousness of security threats.

The principal animating factor of CSIS internal controls is the Service's highly centralized nature - a centralization that extends to, and impacts upon, all aspects of operational decision-making. Most importantly, central operational control is manifested in two committees chaired by the Director, CSIS:

• the Target Approval and Review Committee (TARC). It includes the most senior Service operations managers, Department of Justice counsel and a designate of the Deputy Minister of Public Safety and Emergency Preparedness, and decides which groups or individuals will be subject to Service investigation and what level of intrusiveness is appropriate to each. Thus, the origins, scope and intrusiveness of all investigations are initiated and controlled at the most senior level.
  
• the Warrant Review Committee (WRC). Having the same membership as TARC, with the notable addition of an Independent Counsel, it reviews and approves all s.21 CSIS Act warrant applications to the Federal Court. Thus, the most intrusive investigative powers of the Service are subject to the most senior level of examination and approval before they are requested from the Federal Court. In considering these warrant applications, the Federal Court provides the essential element of judicial control on CSIS investigative powers - powers having the greatest potential to affect individual rights and freedoms.

Another unique provision of the CSIS Act, set out in section 20 of the legislation, is designed to ensure the reporting and investigation of all cases where CSIS employees may have committed an act of non-compliance with legislation or policy or an unlawful act in the performance of their duties. The purpose of this section is to require the reporting of alleged unlawful activities that would otherwise have remained undetected by provincial law enforcement agencies.

Finally, CSIS internal control mechanisms operate within a broader framework of direction and accountability, most importantly including the Minister, and Parliament. A more detailed summary of the CSIS accountability and review framework and the security intelligence cycle it regulates, can be found on the CSIS Web site. ⁽¹⁷⁾

V. Conclusion

In considering the dynamic between external review and internal controls, a note of balance was struck by Maurice Archdeacon in his 2003 Inspector General's Certificate. Mr. Archdeacon was Executive Director of SIRC from its inception until 1 September, 1999, when he was appointed Inspector General. He retired in November, 2003:

"In my opinion, in the nearly twenty years during which I have had some knowledge of these matters, the Service has evolved from being a rather disorganized organization with significant weaknesses, to a highly professional and effective arm of government.

Most of this substantial improvement in performance can be credited to the senior managers and staff of the Service. Without their determined and well-directed efforts, no amount of outside pressure could have achieved the same result.

Nevertheless, the existence and, from time to time, the observations of the two outside review agencies have certainly contributed to the maturing process. I hope, as I retire from active participation in this challenging environment, that no-one makes the mistake, so often made in the past, of believing that current safeguards are no longer really necessary. The low costs of the review bodies and the very special care taken in the selection of the Director of the Service are a very small price indeed to pay for a professional, effective, and virtually trouble-free security service in these dangerous times." ⁽¹⁸⁾

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Endnotes

1. The Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police.

2. McDonald Commission Report, 2nd Report, Vol.2.

3. Canadian Security Intelligence Service - Explanatory Notes, Solicitor General Canada, May 1983, p.2.

4. Report of the Special Committee of the Senate on the Canadian Security Intelligence Service [Pitfield Committee], p. 29.

5. Security Intelligence Review Committee Annual Report 1984-85, p. 5

6. s.38 and s.40, CSIS Act

7. SIRC Report 2003-2004, p. 3

8. SIRC Report 2003-2004, p. 4

9. SIRC Reports 2002-03 and 2003-04

10. SIRC Report 2003-04, p. 16

11. Emphasis added

12. Emphasis added

13. Emphasis added

14. SIRC Report 2003-04, p. 16

15. s.41, CSIS Act

16. Certificate of the Inspector General of the Canadian Security Intelligence Service, 2003. Made public January 2004 (the symbol [--] represents classified information removed from the document. Available at http://www.psepc-sppcc.gc.ca/igcsis/publications_e.asp

17. “Accountability and Review”, Canadian Security Intelligence Service, Backgrounder Series, No.2, November 2004.
http://www.csis-scrs.gc.ca/en/newsroom/backgrounders/backgrounder02.asp

“CSIS and the Security Intelligence Cycle”, Canadian Security Intelligence Service, Backgrounder Series, No.3, February 2004.
http://www.csis-scrs.gc.ca/en/newsroom/backgrounders/backgrounder03.asp

18. Certificate of the Inspector General of the Canadian Security Intelligence Service, 2003, op.cit.

Date modified: 2005-11-14

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