Bill C-59: Oversight and Review Mechanisms

The National Security and Intelligence Review Agency Act & The Intelligence Commissioner Act

Read our intro to Bill C-59 here

A major part of Bill C-59 proposes to create a new review body, the National Security and Intelligence Review Agency, and an Intelligence Commissioner who would have oversight specifically over surveillance activities.

Background

Right now, only three out of 20 or so (the number isn’t clear) agencies with national security responsibilities have independent review mechanisms that can receive complaints from the public about their conduct and evaluate if the agencies are respecting Canadian laws:

  • The Security and Intelligence Review Committee (SIRC) is the watchdog for our domestic spy agency, the Canadian Security and Intelligence Service (CSIS);
  • The Communications Security Establishment Commissioner carries out review for the Communications Security Establishment (CSE), our foreign electronic spying agency;
  • The Civilian Review and Complaints Commission keeps an eye on the Royal Canadian Mounted Police (RCMP), our national police.

There are many issues when it comes to these three agencies:

  • They often lack the resources to properly do their work, with small staffs and budgets dwarfed by the size of the agencies they are meant to keep accountable
  • They can hold secret hearings with secret outcomes
  • Their reports can be censored by the agencies they are supposed to review, as well as the ministers responsible for them
  • They often can’t assess if an agency has broken the law because of poor-record keeping practices
  • They have no authority to enforce specific changes

For more details on the many problems with our national security agencies and their review mechanisms, check out our deeper analysis here.

Last June, Bill C-22 – an act creating the National Security and Intelligence Committee of Parliamentarians – became law. Composed of 11 MPs and Senators, its mandate is to review all national security activities. While members will include opposition MPs and Senators, they are appointed by the Prime Minister, weakening the committee’s independence from the government. It also won’t be able to accept complaints from the public.

There are also several other problems with it:

  • The Committee won’t have the power to compel people to appear or to obtain documents;
  • The Committee members won’t have access to all the documents and information necessary to do their work;
  • The government will be able to block investigations on vague and broad grounds of ongoing national security operations
  • The Committee won’t be able to seek judicial review of decisions to block access to information, limit investigations, or keep sections of their reports from being made public.

The Liberal government failed to fix these important issues so we are afraid the Committee of Parliamentarians won’t be able to properly fulfill its mandate. For more details, check out our work on C-22 here.

National Security and Intelligence Review Agency (NSIRA)

NSIRA sounds great on paper, and is the strongest improvement in Bill C-59. The ICLMG and our members have been advocating for this kind of review body since what feels like the dawn of time… In reality, it’s been eleven years, ever since Justice Dennis O’Connor made the recommentation in his report on the Commission of Inquiry into the case of Maher Arar.

Maher Arar is a Canadian citizen who was sent to, detained and tortured in Syria because of erroneous information sent by Canadian agents to US officials. There was a subsequent inquiry into the cases of Abdullah Almalki, Ahmad Elmaati and Muayyed Nurredin who were also detained and tortured abroad because of erroneous information sent by Canadian agencies. All four have received apologies and compensation from the federal government.

One of Justice O’Connor’s critiques was that existing agencies were all working in silos, meaning they could not communicate and share information, even regarding operations involving more than one agency. This led to huge gaps in oversight and a lack of accountability for human rights abuses.

The NSIRA will be able to review all Canadian national security activities. This review is desperately needed, but it’s also important to remember that no amount of review can make up for bad laws like Bill C-51, the Anti-terrorism Act of 2015.

We think the NSIRA is strong overall:

  • It is an integrated review mechanism that will look at all national security activities
  • This will include reviewing the national security activities of the CBSA, the Canadian Border Service Agency. (It’s important to note, though, that the CBSA still needs independent review for its non-national security related activities).
  • It has strong powers to compel witnesses.
  • It has extensive access to information.

But there are weak points too:

  1. The government would appoint the members, even though that’s who they’re reviewing. The members should be appointed by Parliament.
  2. The NSIRA is not able to make binding recommendations. This is the case with existing review agencies, and we know that most of the time the agencies either don’t accept or don’t follow the recommendations.
  3. It is essentially a super-SIRC (the current CSIS review body), so it comes with many of the same old problems.

The government lacks the expertise and powers necessary to oversee what our national security agencies are doing, because so much of what is done and how they operate is kept secret.

The media, citizens and courts are able to investigate and hold organizations like the police and the government accountable when they make mistakes because they operate in public and we can access enough information about them. We cannot do that with our national security agencies. For example, we can file access to information requests, but most of them come back with important details blacked out and are largely useless (and that’s when you know what to ask for in the first place).

The NSIRA will also incorporate a complaints mechanism, which is good, but current inadequacies with complaint-based review mechanisms such as SIRC raise other questions:

  • How can you complain if you don’t know that you are being spied on?
  • Hearings are secret, so if you bring a complaint, you cannot talk about them.
  • A complainant will not necessarily be allowed to hear the government’s response to the complaint during the hearing.
  • The recommendations may be so top secret, they won’t even tell you what they are.
  • There is no compensation or reimbursement of legal fees or redress even if abusive conduct was found.
  • SIRC — and the courts — have also been intentionally misled by CSIS on several occasions in the past.

Unfortunately, Bill C-59 does not address those problems.

Check out the video of our panel on Bill C-59 for more details (discussion of review agencies starts at 46 minutes).

The Intelligence Commissioner

The new Intelligence Commissioner would replace the Communications Security Establishment Commissioner – the CSE’s current review body — and would give the new commissioner the power to approve the Ministerial authorizations for intelligence gathering before they become operational. This will apply to both the Canadian Security Intelligence Service (CSIS) and the CSE.

Integrating oversight before a surveillance activity is carried out is a first in Canada. It’s a significant and welcomed addition.

However, we think the government could make it a lot stronger:

  • The Commissioner must report to the new NSIRA, but the act does not specify what NSIRA must do with those reports. The law should be more specific.
  • The Commissioner should not be appointed by the government, but through Parliament.
  • The Commissioner should be a full-time position – not part-time, as it is currently written.
  • Avenues for appeal and consulting should be added.
  • The Commissionner should have mandatory, public reporting. In the US, similar oversight bodies working in secret have granted near 100% approval to surveillance warrants. To avoid that, we need a bit of sunlight on the process.

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