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Ensuring the balance: Rights, freedoms and the five year parliamentary review of the Canadian Security Intelligence Service Act

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Summary of major recommendations

To ensure a balance between democratic rights and freedoms in Canada, and security intelligence activities of CSIS and related agencies, several key legislative changes to the Canadian Security Intelligence Service Act, 1984, must receive Parliamentary approval.

A. Oversight, control and accountability

  1. There must be an extension to the Security Intelligence Review Committee’s mandate and powers—to provide for SIRC review not only of CSIS, but also the RCMP/NSIS activities. And where normal CSIS activities might fall to another governmental agency, this SIRC review should be extended to cover this as well.
  2. Regular five year parliamentary reviews should be included as a legislative requirement of theCSIS Act.
  3. There must be an amendment to section 34 to require the approval of leaders of all recognized parliamentary parties of appointments to SIRC.

B. Mandate and powers

  1. The CSIS Act should be amended to eliminate clause 2d, the section giving CSIS authority to investigate domestic subversion. This authority should not be transferred to another agency. The RCMP/NSIS should be limited to investigations provided for under the Criminal Code.
  2. The CSIS Act, section 2, should be amended to establish that CSIS operations be directed by the provisions of the criminal code where questions of Canada’s national security are involved, in all circumstances insofar as Canada’s political process is concerned

6. A new subsection should be added to the CSIS Act to provide for additional CSIS authority in exceptional circumstances such as Canada’s hosting of economic summits, Commonwealth/ Francophonie conferences, etc. Here, specific cabinet designation of an exceptional circumstance should be a legislative requirement.

These are essential recommendations to ensure the balance between rights and freedoms and security and intelligence.

Background

In November, 1983, the (Pitfield) Special Committee of the Senate on the Canadian Security Intelligence Service published its report: A Delicate Balance: A Security Intelligence Service in a Democratic Society. This report was in response to widespread criticism of Bill C- 157, a proposed Act to establish a Canadian Security Intelligence Service, introduced into Parliament on May 18, 1983.

The flaws in C-157 were significant, including a mandate too broad, powers too intrusive, and democratic controls too limited to ensure basic democratic rights and freedoms. Interventions by organizations such as the B.C. Civil Liberties Association (before the Senate Committee in 1983, and before this Parliamentary Committee in May, 1984) pointed out the lack of balance in the initial Bill and the importance of achieving such a state.

The Government’s response to the initial criticisms was Bill C-9, introduced into Parliament on January 18, 1984. As noted in the May, 1984, BCCLA Brief to this Committee, “C-9 [was] a clear improvement over C-157 inasmuch as the Director is now under the control of the Solicitor General, and the mandate and powers of the Service [have been] narrowed.”

At that time, the BCCLA noted three matters of particular ongoing concern:

[A] Need: While recognizing the necessity of protection from foreign intelligence agencies and terrorism, significant concern was raised about the potential to disrupt democratic rights and freedoms with the third category—domestic subversion. The Security Intelligence Review Committee came to accept this view and changes were made prior to this five year review with the disbanding of the CSIS counter subversion section. Legislative confirmation of this change is necessary.

[B] Civilianization: C-9 met the major concern—to ensure that the Director of CSIS was brought under ministerial control, thus ensuring accountability to Parliament and the electorate. The need to “civilianize” intelligence gathering and remove it from traditional law enforcement was noted. The relationship between CSIS and the RCMP has remained a problematic one. Issues surrounding the operational relationship of CSIS to other intelligence agencies, including the RCMP’s NSIS, and to the accountability mechanisms of these agencies to Parliament remain.

[C] Mandate: Concerns about the breadth of the CSIS mandate were expressed with C-157; they remained with C-9. How one adequately defined “threats to the security of Canada” was a problem and remains one. In 1984, the BCCLA recommended that “it be unlawful to place the activities of persons under surveillance before there [was] reason to believe the activity [was] criminal in intent or likely to result in crime. Under this proposal, the Security Service would not receive powers to investigate any activity not already prohibited by law.” We will return to this below under Recommendations. Clearly, as indicated by the various annual reports of the Security Intelligence Review Committee, and as will be argued in this brief, mandate concerns continue.

The Pitfield Report concluded that: “the security of the collectivity and individual rights is perhaps the most important matter to be considered when dealing with the subject matter of the Bill. The need to balance collective security—the safety of the state and its institutions from threats of espionage, terrorism and subversion—and individual rights to privacy, to dissent, to be politically active and to hold and express unpopular or radical opinions is the challenge to be faced in the establishment of a security intelligence system. There is a very basic tension between the concepts of collective and individual security, and it must be addressed at virtually every stage of the formation and operation of a security intelligence agency.” [Emphasis added]

That remains the challenge for the 1990s, and for this Committee’s, and Parliament’s, current five year review of the Canadian Security Intelligence Service Act (and CSIS).

Public policy dilemmas and administrative challenges

We would argue that there are five broad areas of policy concern for the Committee to address in assessing the operations of the CSIS Act over the first five years of its existence. Within these areas, major public policy dilemmas and administrative challenges exist. For many of these, policy choices and legislative changes are necessary. The most significant concerns are addressed in the Recommendations section of this brief

1) Necessity:

CSIS is established. A continuing basis for questioning the necessity of CSIS exists; however, given the recognition of necessity for a national intelligence gathering capacity, particularly when coupled with the oversight work of the Security Intelligence Review Committee over the period 1984-1989, this does not seem the appropriate central concern of this parliamentary review. The more important foci are those of democratic accountability and mandate.

2) Security of the collectivity vs individual rights:

The continuing need to monitor governmental attempts to ensure the balancing of these issues must be emphasized. Parliament must include this question with every other issue regarding reform/ review of the operation of the CSIS; the Pitfield Committee Report concluded that this was the most important issue of all. It was to inform all other questions Parliament asked. That emphasis remains.

3) Mandate/Powers:

In 1983, the BCCLA argued that the C-157 mandate for CSIS was too broad. Legislative changes were made. In May, 1984, the Association continued to argue that the C-9 mandate was too expansive. For example, the legislative wording of “foreign influenced” and “detrimental to the interests of Canada” were described as concerns from the start of CSIS. SIRC has indicated that it shares the view that these need examination and more circumscribed wording.

Apart from this general concern, under mandate and powers, a number of areas of needed reform stand out:

a) Part of the dilemma on the CSIS mandate/powers relates to exceptional events such as Canada’s hosting of International Economic Summits, Olympics, Commonwealth or Francophonie Conferences, etc. Here the primary concern is not subversion but terrorism and espionage. The BCCLA’s view is that the Criminal Code standards for investigation be followed in virtually all circumstances of domestic politics, with an addition to the legislation describing the nature of the exceptions noted above for these special events. The Criminal Code Model is one in which, save for special events, it is unlawful to use extraordinary investigative techniques (wiretaps, surreptitious entry, etc.) unless there are reasonable and probable grounds to believe that criminal activity has occurred or is about to occur and judicial authorization is given for the use of such techniques.

Legislative amendments might handle this particular dilemma in a manner adequate to protect both dissent and national security. We would support a relaxation of the Criminal Code Model with regard to the use of extraordinary investigative techniques only for legislatively defined special events. The BCCLA accepts that normal standards law enforcement may not be adequate to respond to the special exigencies created by such events. Then the process could involve some discretion being granted to the Director, on application to the Federal Court, for a relaxing of evidential requirements for issuing warrants, given factors such as the seriousness and immediacy of the threat. In such circumstances the court would want to look at such matters as the credibility of the source(s) or CSIS’ own research in coming to a decision. If the allegation were simply an anonymous tip that a terrorist organization was going to bomb a summit meeting in Canada, with no further information about what organization was going to do it and when and how it was to be done, the courts would deny authorization for a special warrant. If information were received that indicated special knowledge of a possible threat, and the threat itself was serious enough, then the court might look more carefully at the need, even though the evidential requirements might fall short of what would normally be required under the Criminal Code.

Aside from the special events classification, there is very little reason to believe that following theCriminal Code model in all other matters will not adequately protect national security interests. Courts understand that if the purpose is to try to prevent harm to Canadian political institutions, responding to the “probability” of harm requires an assessment not only of how likely the action is, but also of what is at stake. That involves a more complex calculation than simply determining whether a threat is probable or not. There is little evidence that Canadian courts will not pay adequate respect to the need to protect national security. On the issue of whether the courts adequately “maintain the balance”, and sufficiently protect civil liberties, that might be the subject of a SIRC-based study of the efficacy of the Canadian courts in reviewing warrant applications.

One legislative amendment to ensure a stricter adherence to the Criminal Code Model where lawful dissent is concerned is to delete the “unless” clause at the end of section 2 of the Act. We would urge that this approach apply to all CSIS activities except for those temporary exceptions noted above.

The effect of these two changes would be to establish that CSIS must follow the Criminal CodeModel in nearly all circumstances where questions of Canada’s national security are putatively involved. Note that in the temporary state of affairs, such as Canada hosting an international meeting/event, the threat is not likely to be to Canada’s national security, but to Canada’s relations with other countries and to the conduct of international relations generally, as well as often to the national security of other countries. Given what is at stake in these events, and the concentration of antagonistic political players in front of and behind the scenes, regular law enforcement procedures may not be adequate to respond to the threats that may arise. There is some justification in these circumstances to relax the requirements of the Criminal Code Model to respond to the exigencies created by these events. In other circumstances, we think that the Criminal Code Model is adequate.

b) We support legislative change to require special authorization, by the Solicitor General, to investigate persons involved in neither espionage nor terrorism. This simply provides a legislative requirement for the current practice, and thus should engender little controversy. It will also put an additional protection against potential future abuse.

c) The CSIS counter subversion section was disbanded during the initial period between establishment and review. This was recognized as one of the areas most open to potential abuse. SIRC noted this, argued for the change, and change occurred. The BCCLA recommends that this be noted in a legislative change. The removal of this authority to investigate domestic subversion from the CSIS Act will be of no value if it simply slides to RCMP/NSIS, or a related intelligence agency. Thus this recommendation must be tied to a further legislative amendment extending beyond CSIS to NSIS/RCMP (or related) intelligence gathering operations/agencies.

Whether this recommendation should include defence-related agencies such as CSE is somewhat more problematic. The argument that these must be excluded to ensure appropriate trust/exchange with related allies is countered by allied experience in other countries such as Australia, and SIRC experience regarding CSIS in years 1 to 5. That is, despite dire predictions from the intelligence community, it has worked reasonably well. The final argument here is that the delicate balance in a democracy should anticipate such limited scrutiny.

d) We would also note that SIRC has already done some interesting experimentation with “devil’s advocates” at Federal Court judicial warrant hearings. This should be included as an amendment to Part II of the Act. With regards to complaints hearings, the SIRC-inspired experimentation with cross examination demonstrates an ongoing reflection of searching for balance. Where the alternative is no capacity to cross examine, then this experiment deserves support. SIRC appointed lawyers would appear to offer the best response to “justice being seen to be done” arguments.

e) On the subject of whistleblowers, the BCCLA supports the proposal that there be adequate legislated protection where whistleblowers expose perceived wrongdoing to SIRC. f) With regard to the denial of security clearances, there must be some legislative provisions consistent with the “appropriate balance” theme of this brief, and the Senate Report of 1983. These should certainly reflect adequate procedural guarantees. And if faced at some future date with a more problematic administration, then inclusion of a statutory requirement for timely response vs limbo/unreasonable delay would be appropriate. The early experience on Freedom of Information legislation in the United States in the late 1970s, timely responses was one of their primary concerns. That is also consistent with the “justice delayed is justice denied” thesis.

g) The BCCLA has no serious objection to Emergency Warrants being issued upon application by the Director as long as speedy judicial review is included as a legislative requirement. A provision for possible compensation, in addition to discontinuance, would be an additional mechanism to ensure limitation on abuse.

4) Accountability/monitoring/review:

The Security Intelligence Review Committee has performed a commendable service during the first five years of the CSIS Act. There are a number of SIRC-inspired proposals that deserve support; and there are other recommendations regarding accountability, monitoring and review that we wish the Committee to consider.

(a) Ongoing Review: The BCCLA believes that this is one of the major legislative changes for Parliament to contemplate. The current five year review was built into the CSIS Act to assuage significant public concerns about the creation and operation of such an agency. We strongly urge that this provision be maintained, and propose five year Parliamentary reviews as a regular legislative requirement. Five years is appropriate as it is the same as the initial term of Director, of SIRC appointments and of this initial required review. Minimally, it would provide for a regular public and parliamentary look-in. It might also provide encouragement for some legislative experimentation by Parliament where particularly thorny policy dilemmas remain.

More specifically, the reasons for this five year review are as follows:

i) If we accept the preponderance of evidence that security intelligence agencies often have little concern for legal restrictions on their activities and have an exaggerated sensitivity of what counts as a threat to national security, then it is clear that oversight and public and governmental pressure are the only remaining ways to keep them in check. The anticipation and the glare of a regular public review of legislation and activities of CSIS would serve as a forceful reminder to that agency of its obligations to interfere with civil liberties as little as possible (or “to the extent that is strictly necessary”, section 12);

ii) There is a real danger that SIRC may be coopted by CSIS, or that new appointees to that Committee may not be properly sensitive to the need to protect civil liberties. Appointees may also be too closely tied to a current government or its agenda. During the first five years of CSIS and SIRC there was not much evidence that this was the case, but SIRC has voiced concerns in its Annual Reports about the potential for being coopted, and there is no good reason to think that appointments to SIRC will always be as good as they were in the first term.

The importance of this issue can be recognized by Parliament by a simple amendment to Section 34 of the Act requiring approval of all appointments to SIRC by the leaders of all recognized parliamentary parties. As presently required, SIRC appointments are by Governor-in-Council, from amongst members of the Queen’s Privy Council For Canada who are not current members of the House of Commons or Senate, “after consultation by the Prime Minister with the Leader of the Opposition in the House of Commons, and the Leader of each (recognized, i.e. with at least 12 members) party.” The political pressure on the government to make the oversight process work in light of the current five year review was apparent, and good appointments were made to SIRC as a result. It is arguable that in the absence of such pressure, future governments may make softer appointments. It has not been uncommon for police to lobby for appointments to Police Commissions; CSIS may also lobby for its own candidates for SIRC, or governments might make future appointments to downgrade the importance of the SIRC.

A precedent for this method of appointment can be found in various Ombudsman statutes which typically require some form of all party consent, often unanimous parliamentary consent, to appoint an Ombudsman. Given the ombudsman-like role performed by SIRC, and the centrally important position of SIRC in the Act’s accountability scheme, we would recommend an amendment to Section 34 of the CSIS Act: replacing the phrase “after consultation with…” with “on the unanimous recommendation of the Prime Minister, the Leader of the Opposition and the Leaders of each party with at least twelve members.” As the Pitfield Committee concluded: the delicate balance must be maintained at every stage of the legislation and process; it is essential that the credibility of SIRC and its potential to impact on the security intelligence process be maintained.

iii) As the international political climate changes, there may be sensible reasons to amend various aspects of the CSIS Act or CSIS’ policies. At present, there is a good argument for eliminating its authority to investigate domestic subversion. And East-West tensions may continue to improve and terrorism may diminish to the point where it would make no sense to have an organization with the resources that CSIS has.

iv) It is a common complaint of security intelligence agencies that they receive inadequate direction from government. SIRC notes CSIS has made such a complaint (SIRC Report, 1987-88, p. 36). Scholarly reflection, of the sort that is usually occasioned by such public reviews, on the degree of security threats and the adequacy of CSIS’ legislation and policies to meet them, is one way to help inform politicians so that they can better direct CSIS. It will also mean that CSIS and SIRC will be less able to become alienated from contemporary political trends and views about security intelligence.

Unless there is a regular review, we doubt that there will be the political will to address these issues, and given what is known about security intelligence agencies propensity to exaggerate threats and needlessly infringe civil liberties, there is no good reason to think that CSIS will always properly adjust its activities to meet diminishing security threats. This issue is recognized as a problem in theSIRC 1987-88 Report (p. 31). As well, abuses by CSIS may come to light that call for specific legislative amendments. Whether or not amendments are made, just hearing these sorts of arguments and the evidence marshalled in their favour should be of assistance to the government and SIRC in determining its relationship with CSIS and in setting policy. And needless to say, what is at stake in terms of political freedoms is important enough in itself to justify such an ongoing review.

(b) Staggered SIRC Appointments:

Although SIRC has noted the potential for cooptation, none has occurred to date. One protection from this danger is staggering appointments. It is true that this might require a slightly enlarged SIRC. However, as smallness should remain an efficiency factor, seven SIRC members would appear to allow both for some continuity (SIRC notes an 18 month learning curve in a five year term) and for some new blood. The BCCLA believes that this appointment procedure would constitute an acceptable balance. When coupled with the potential SIRC re-appointment for a second five year term, sufficient guarantees on this issue should be assured.

(c) SIRC Access to Cabinet documents:
The Supreme Court’s decision in the Auditor-General case in 1989, and the Government’s iNSIStence on the principle of Cabinet confidentiality, suggest that this proposal represents a difficult policy choice. Given both the special needs of security intelligence and the special features of SIRC, the proposal to allow SIRC access to Cabinet decisions on security intelligence would seem worthy of consideration.

(d) SIRC Review of RCMP/NSIS and other security intelligence agencies
The BCCLA recommends this as one of the central proposals for CSIS Act reform; and SIRC is the appropriate agency for such work. There is no need to duplicate the oversight function, and much to recommend against such duplication. Duplication creates more potential for miscommunication or abuse, and protection against these is absolutely essential regarding CSIS and NSIS. The same logic would apply to any other existing or future agency that might take on related roles. It would appear less a concern for specific defence related activities, though the need for some accountability mechanisms in a democracy remains.

(e) Policy guidelines/statistics:
SIRC recommendations on requirements for the publishing of appropriate policy guidelines and statistics should be supported, especially for CSIS and NSIS activities such as warrants, warrants rejected, and so on. U.S. experience with its first Freedom of Information Act resulted in the recommendation that such provisions as maintaining adequate statistics for legislative monitoring be a statutory requirement to ensure agency compliance.

(f) SIRC day to day v. post-audit CSIS review
SIRC review of day to day operations is what is called for in the Act. However, CSIS has attempted to place a more limited ex post facto interpretation to limit SIRC’s role. Parliament should reaffirm SIRC’s role, and if necessary (as per the U.S. Freedom of Information Acts, versions 1 and 2) this should be stated more clearly in the amended CSIS Act.

(g) Access/privacy legislation and CSIS Act
The BCCLA recommends that Parliament reject the “William Casey view” that the CIA and FOIA could not co-exist. In a democracy they simply must—(à la Lambert Report on Accountability And Efficiency). Here Parliament must apply the ’balance’ theme.

(h) Destruction of non-active files
There must be a clearer justification of ’ongoing’ files. The reduction of some 800 files from 3,800 to 3,000, as a result of disbanding the counter subversion operation—partly satisfied this requirement. However, SIRC still needs to satisfy itself, Parliament and the public that only files necessary for the carrying out of its mandate are kept by CSIS.

(i) Governmental direction to CSIS
This is needed. Although no specific solution is obvious, the fact that SIRC has noted this demonstrates that there are some concerns. We remind the Committee that the McDonald Commission commented on the potential for abuse when political directives were unclear. We urge Committee consideration of this issue. SIRC access to Cabinet decisions on security intelligence would at least partially satisfy this requirement, in that it would allow SIRC to comment on the need for clearer governmental policy direction to CSIS.

(j) CSIS information to the public:
The question has arisen whether CSIS should inform Canadians that an organization they might support had been “infiltrated” by subversives. The BCCLA wonders whether Canadians would trust a CSIS designation on infiltration or subversion or some other category. And we wonder what would result if someone were warned and did not accept either the definition or the threat. Would that person be defined as a subversive? We recommend a SIRC-based judgment in order to preserve the balance here. Less than that would be highly problematic.

5) Structure/management

In kinder, gentler days, this was the issue of civilianization. The continuing effort to recruit more broadly, and a decision to allow the exchange of CSIS agents with other federal agencies, could contribute to public perceptions of, and actual, openness. What we recommend is a two-way street: CSIS personnel out to other agencies, and personnel for other agencies (including outside experts) in. Whether such an exchange program would be worth the time and cost of extensive security clearances could be left open to a SIRC review. Some opening up of CSIS by an exchange with other federal agencies would appear to be a worthwhile experiment.

We oppose the idea of establishing a permanent parliamentary committee responsible for reviewing the ongoing activities of CSIS. Ale dangers we see in this proposal are as follows: (1) the more agencies that CSIS must potentially show information with, the less likely it will be to share information with anyone (SIRC in particular, thus reducing the quality of CSIS oversight); (2) such a committee may dissipate the government’s and the Solicitor General’s responsibility for adequately directing and ensuring proper accountability on the part of CSIS; (3) if training for membership in SIRC is a rationale we suspect that the “training” will be attempted by CSIS and the Solicitor General’s ministry, and that almost certainly will not be the right sort of training. Cabinet should perform the role of a parliamentary committee. That places responsibility for national security where it belongs.

Recommendations

Ale necessity for carefully observing the balance between having adequate intelligence gathering capacities and respecting individual freedoms recognized by this five year review of the Canadian Security Intelligence Service Act, makes it essential that Parliament consider a range of legislative and policy options. This review—and the past five years of CSIS operations—have identified a number of important concerns that can only be addressed by changes to the CSIS Act.

Recommendation 1

If Parliament’s 1984 intention was that accountability in our national security and intelligence gathering be assured, then there must be an extension to the security intelligence review committee’s mandate and powers—to review not only CSIS, but also the RCMP/NSIS activities. And where normal CSIS activities might fall to another governmental agency, the SIRC review capacity should be extended to cover this agency as well.

An alternative to this is the potential for significant decline in the accountability requirements in security intelligence operations, and a parallel loss of public trust in the capacity of the Government, and Parliament, to ensure that the appropriate balance between security intelligence needs and individual rights and freedoms in the Canadian democracy are maintained.

Recommendation 2

A continuing capacity for Parliament to review this controversial area of public policy and administration is also essential. Thus, it is essential that regular five year parliamentary reviews be included as a legislative requirement of the CSIS Act.

Security and intelligence policy and administration will always require careful monitoring. SIRC plays a significant day to day oversight role in this regard; and its annual reports have been most instrumental in highlighting areas of concern in the CSIS Act. A specific legislative assurance of parliamentary reviews of the CSIS Act, and of CSIS, will go a considerable way in assuring the Canadian public that accountability is considered seriously by Parliament.

Recommendation 3 Public confidence in the accountability mechanisms approved by Parliament in 1984, require that the SIRC be seen to be above partisan, and current politics. To ensure this, there must be legislative amendment to section 34 to require the approval of all leaders of recognizedparliamentary parties of appointments to the Security Intelligence Review Committee.

One of Canada’s contributions to security intelligence administration in democracies has been in the oversight, control and accountability provisions of the CSIS Act. Given the Pitfield Committee requirement on balance, SIRC’s role, and the general perception of it, is central to this accountability scheme. Appointments to SIRC must be above reproach.

Recommendation 4

The disbanding of CSIS’ counter subversion section should be noted in legislative fact: The CSIS Actshould be amended to eliminate clause 2d, the section giving CSIS authority to investigate domestic subversion. Essential to this legislative change is the provision that such authority not be transferred, even in a de facto manner, to another agency, such as the RCMP/NSIS.

Implementation of Recommendation 1, above, would offer some assurance on this. Recommendation 2 would provide for a future review of this, and an opportunity for subsequent argumentation for any re-inclusion. The RCMP/NSIS should be limited to investigations provided for under the Criminal Code.

Recommendation 5

Section 2 definitions in the CSIS Act of “foreign influenced” and activities “detrimental to the interests of Canada” have been seen to be too broad. The CSIS Act, section 2 should be amended to establish that CSIS operations be directed by the provisions of the Criminal Code where questions of Canada’s national security are involved, in all circumstances insofar as Canada’s political process is concerned.

A new subsection should be added to provide for additional CSIS authority in exceptionalcircumstances such as Canada’s hosting of economic summits, Commonwealth/ Francophonieconferences, etc.

Here, specific legislative designation of an exceptional circumstance, confirmed by the Federal Court, in particular circumstances where extraordinary investigative techniques may be required, should be a legislative requirement. With the implementation of regular review provisions of recommendation 2, above, this might be experimented with and monitored in the next five year legislative review.

Other recommendations

The Public Policy Dilemmas and Administrative Challenges section of this brief contains a number of other options for legislative and policy change. We recommend these for the committee’s consideration. The essential recommendations presented here, however, are requirements for ensuring the balance between rights, freedoms and CSIS.