Bill C-51 Backgrounder #5: Oversight and Review: Turning Accountability Gaps into Canyons?

57 Pages Posted: 1 Mar 2015  

Craig Forcese

University of Ottawa - Common Law Section

Kent Roach

University of Toronto - Faculty of Law

Leah Sherriff

University of Ottawa- Graduate Studies in Law

Date Written: February 27, 2015

Abstract

Canada’s system of national security “oversight” is imperfect. Its system of national security “review” is frayed, perhaps to the breaking point. The government’s antiterrorism law, bill C-51, will accelerate this pattern. Without a serious course correction, we risk the prospect of avertible security service scandals.

There is often a misunderstanding about the distinction between “oversight” and “review”.

In Canadian practice, oversight is usually an executive branch function. This system has not always worked – the Air India Commission suggested (and the government rejected) new centralized oversight systems for reconciling competing national security interests.

C-51 does not introduce new reforms in this area. The government instead points to judicial warrants authorizing the new CSIS powers – a form of oversight. But this is, at best, a partial form of oversight. CSIS will not always require warrants. Judges will issue warrants in secret proceeding in which only the government side is represented. Nor will they always know what is then done in their name. There is no formal “feedback” loop between CSIS and the judge concerning the execution of the warrant, a key concern where (as with CSIS warrants) the conduct is covert and the warrant never disclosed.

In these circumstances, accountability depends on review. “Review” is an audit of past performance, to ensure compliance with law and policy. CSIS’s review body is SIRC. The idea that SIRC review is adequate and enhanced review is needless red tape is simply wrong.

SIRC’s resource constraints and design mean that it is incapable of reviewing all of CSIS’s activities, or even all of CSIS’s conduct under its existing warrants. A necessarily partial approach to review will be spread even thinner as CSIS’s powers expand.

More than this, SIRC (and other review bodies) are unnecessarily hamstrung by legal limitations that “stovepipe” their functions to specific agencies, and prevent them from “following the trail” when government agencies collaborate – an increasingly common practice that C-51 (and C-44) will unquestionably increase.

The Arar Commission recommended that “statutory gateways” be created allowing SIRC to share secret information and conduct joint investigations with Canada’s two other existing independent national security review bodies. The government has not acted on this report, or the Privacy Commissioner’s 2014 report that its powers were inadequate to review security information sharing – and information sharing is to be dramatically increased in C-51.

Meanwhile, not even SIRC reform would address the fact that Canada, alone among its “Five Eye” security partners, does not give parliamentarians access to secret information. As pointed out recently by four former prime minister’s (and others) a Parliamentary review is not redundant – it can perform valuable “pinnacle” review by examining the entire security and intelligence landscape.

Other democracies have made parliamentary review work well with independent expert review bodies. They have also shown that parliamentary review powers contribute to a broader parliamentary competence in an area where it is essential: national security law.

Keywords: national security law,accountability,oversight

Suggested Citation

Forcese, Craig and Roach, Kent and Sherriff, Leah, Bill C-51 Backgrounder #5: Oversight and Review: Turning Accountability Gaps into Canyons? (February 27, 2015). Available at SSRN: https://ssrn.com/abstract=2571245 or http://dx.doi.org/10.2139/ssrn.2571245

Craig Forcese (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.cforcese.ca

Kent Roach

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

Leah Sherriff

University of Ottawa- Graduate Studies in Law ( email )

No Address Available

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