Canada was once a leader in national-security accountability. When the Canadian Security Intelligence Service (CSIS) was created in 1984, it was subject to scrutiny by a parallel "review" body, the Security Intelligence Review Committee (SIRC). The Liberal government of the period, however, declined to follow the McDonald Commission's recommendation for a committee of security-cleared parliamentarians who would also watch the intelligence service.
And this is the way things stood for generations, even after the last government remodelled CSIS as an entity that can also now act physically, potentially in violation of the Charter and other laws.
The inquiry into Maher Arar's maltreatment warned in 2006 that there were critical gaps in Canada's intelligence-accountability system: Even as CSIS worked increasingly with partner agencies, SIRC could not scrutinize what happened past the handover point, when CSIS information flowed to another agency.
One of those agencies – the Communications Security Establishment, Canada's electronic spy agency – has its own reviewer. But SIRC and the CSE commissioner cannot conduct joint accountability reviews, sharing secret information. And so SIRC and its counterpart are limited to narrow, "stove-piped" mandates. And they are kept to their own silos in terms of co-ordination, even as the agencies they review rightly operate more seamlessly.
The Arar inquiry raised concerns that much security work, such as that done by the Canada Border Services Agency, was subjected to no review whatsoever. And for the RCMP, we had only a body that could hear complaints, but usually not get the information needed to pursue them.
After the Arar report, the Harper government did very little to cure these problems. It created a new review body for the RCMP, but limited its ability to extract information. And so now there were three review bodies stove piped to three (and only three) security agencies, confined to their own separate silos and possessing varying capacity to conduct robust review.
Parliamentarians, for their part, remain shut out from the broad secrecy tent. Parliament has been asked to enact laws – such as 2015's Bill C-51 – while denied information that might have produced a more informed deliberation. Our allies, meanwhile, all now give their parliamentarians at least some access to secret information. And they are also increasingly supplementing this parliamentary role using expert accountability bodies with remits that extend beyond single agencies.
In the spring, the Liberal government proposed Bill C-22 – a law that would create a special, security-cleared committee of parliamentarians able to review a great sweep of security and intelligence activity. This is a welcome development. But whether it will cure the shortcomings of the review system will depend on two things.
First, there is no indication yet that the government will move ahead and fix the problems identified by the Arar commission: the silo and stove-piping impediments on our review bodies. These problems are mentioned in last week's Green Paper, but unhelpfully set off by a consultation question that hints that expanded executive review might duplicate review by the new parliamentary committee. But parliamentarians will not be able to replace the valuable and often very technical audits performed by expert bodies, and the adjudication of detailed individual complaints. Instead, parliamentarians are better equipped to examine the larger, systemic questions of whether our intelligence services act efficiently and effectively.
Second, MPs and their staff will need access to secret information. We note with concern that, unlike SIRC, the proposed committee of parliamentarians can be denied access to information on a host of often broadly phrased grounds. And its power to review security activities is subject to a broad veto by the minister. We also have concerns about the ability of the prime minister to redact final committee reports.
We hope that this fall, the government will be persuaded to move on the legal changes needed to create a new, renewed expert review body (or bodies) able to scrutinize the detailed work of the security and intelligence community. Moreover, Parliament should accord the new committee of MPs enough access to information to look at the big picture issues of national-security agency efficacy and efficiency. They will also need this information to work closely with expert review and complaint agencies scrutinizing the day-to-day operations of security agencies.
Without moving forward on these matters, Canada will continue to struggle with serious national-security accountability gaps.