|National Security Agency||Review Mechanism||Issues|
Budget: $839 M
The Communications Security Establishment (CSE) is Canada’s national cryptologic agency. CSE uses technologically advanced methods and equipment to obtain information from foreign intelligence targets in support of federal government intelligence priorities. Unlike CSIS, CSE does not collect intelligence from human sources. Instead, it collects signals intelligence — technical and intelligence information obtained from electronic emissions, including communications. CSE shares this intelligence with other federal departments and agencies according to its mandate and federal government intelligence priorities, which include Canadian defence and foreign policy matters. CSE also works to protect electronic information and information infrastructures that are important to the federal government.
CSE had its genesis in 1941 as part of the allied World War II effort. It was then known as the Examination Unit and was located in the National Research Council. In 1975, CSE was transferred by order in council to the Department of National Defence. The Government of Canada did not publicly acknowledge CSE’s functions until 1983, and gave it a statutory basis in 2001. CSE’s Chief, under the direction of the Minister of National Defence, has the management and control of the agency. The Chief reports to the Deputy Minister of National Defence for financial and administrative matters, and to the National Security Advisor at the Privy Council Office for policy and operations matters. The Minister may issue written directions concerning the carrying out of the Chief’s duties and functions. By law, CSE’s foreign intelligence activities may not be directed at Canadians or any person in Canada.
Budget: $2 M
The Office of the Communications Security Establishment Commissioner (OCSEC) was created on June 19, 1996, after a former CSE analyst, Jane Shorten, blew the whistle in 1995 about how CSE was illegally listening in on Canadians in Canada which spurred the Liberal government of the day to establish the commissioner’s office.
The Commissioner’s role is threefold:
In 2001, the Anti-terrorism Act came into force and had a direct impact on the functions of OCSEC:
|– LEGISLATION: The law is ambiguous, allows CSE to spy on Canadians by collecting “only” metadata and allows massive spying through Ministerial Authorizations, and CSE does not necessarily need a court’s approval to assist CSIS in threat reduction.
– ACTIONS: CSE has allowed the NSA to create a “back door” in an encryption key used worldwide, has spied on Canadians using public WiFi networks, has captured millions of downloads daily, has engaged in mass Internet surveillance of file-sharing sites, has developed cyberwarfare tools to hack into computers and phones all over the world, and has shared information on Canadians with its foreign partners without proper measures to protect privacy. Data were later erased from the agency’s system making it difficult to find out the number of people impacted by the privacy breach.
– REVIEW: The CSE Commissioner’s reports to Parliament are censored by CSE and then cleared by the minister politically responsible for CSE, the poor record-keeping practices of CSE has limited the Commissioner’s ability to assess the lawfulness of its activities, and it has no authority to enforce specific actions by CSE. The Commissioner is shackled in their ability to respond to the new realities of expanded, more complex intelligence operations, and of higher levels of public expectations around transparency.
LEGISLATION: The legislation states that CSE is prohibited from directing its activities at Canadians or any person in Canada, and must put in place satisfactory measures that protect the privacy of Canadians in the course of using and retaining intercepted information. However, the Anti-Terrorism Act of 2001 allows CSE to collect communications, even if they enter or exit Canada, provided that the target for the collection is a foreign entity located outside of Canada. It also permits it to obtain a Ministerial Authorization to intercept any private communications that will assist in “isolating, identifying or preventing harm to Government computer systems or networks”. Both activities were previously prohibited. Moreover, the “no spying on Canadians” rule no longer applies when CSE conducts work in support of other agencies such as the RCMP or CSIS. Whereas CSIS and the RCMP request judicial warrants for the specific purpose of obtaining information on people in Canada suspected of terrorist or criminal activity, CSE does not require a warrant, but merely a Ministerial Authorization. A Ministerial Authorization allows CSE, for up to one year, to gather intelligence for an entire “eavesdropping category”. Such “category” cannot be an entire country but it can be a satellite or an underwater cable between Europe and America, effectively collecting the communications of millions of people.
All CSE commissioners since the first review in 2004-2005 have concluded that CSE activities are lawful according to the Department of Justice interpretation of the applicable legislative provisions. However, their legal teams disagree with the Department of Justice over the meaning of key provisions which influences the nature of the assurance that they can provide. Also, all CSE commissioners have pointed out that there are ambiguities in the legislation and that it needs to be modified.
Documents obtained by the Star in February 2016 showed that CSE spies can assist CSIS with the agency’s new Bill C-51 mandate to disrupt security threats with little oversight from politicians or the courts. CSE confirmed that they do not necessarily need a court’s approval to assist CSIS in threat reduction.
– In November 2013, documents obtained by The Globe and Mail revealed that on March 15, 2004, Ottawa signed a “ministerial authorization” for a Canadian metadata collection program. The Globe learned of the existence of this program in a heavily censored document obtained under the Access to Information Act. Nearly a decade later, nobody wants to talk about the program. “Even if I remembered the details, I could not talk about it,” said David Pratt, the former Liberal defense minister who signed the document.
– In June 2013, the Globe and Mail reported that Defence Minister Peter MacKay signed a ministerial directive formally renewing the government’s “metadata” surveillance program on Nov. 21, 2011, a secret electronic eavesdropping program that scours global telephone records and Internet data trails – including those of Canadians – for patterns of suspicious activity. The program had been placed on a lengthy hiatus after a federal watchdog agency raised concerns that it could lead to warrantless surveillance of Canadians.
– In September 2013, we learned that CSE was responsible for the creation in 2006 of an encryption standard or key used worldwide by banks, private companies, individuals and governments to protect sensitive online data, but that CSE had allowed the NSA to take control of the process and create a “back door” to access the data that should be protected by encryption. In light of the revelations around Heartbleed, the security bug affecting the OpenSSL encryption software – which was used by the NSA for two years to collect data – we are entitled to ask whether this flaw is related to the “back door”, or simply a result of its creation by the NSA, and if CSE has also exploited this flaw to spy on Canadians.
– In January 2014, the CBC published a top secret document obtained by Snowden showing that CSE had collected, for two weeks, in 2012, information on passengers at a major Canadian airport using the airport public WiFi network in order to follow people and their mobile devices, sometimes up to a week after they left the airport. CSE was able to follow the passengers when their mobile devices would appear on the WiFi of some public places. The document shows that CSE had so much information on the passengers that it was able to track their location days before they arrive at the airport. The agency was testing a new technology which, the document shows, was to be shared with the Five Eyes and is most likely now fully implemented and operational. CSE defended itself by saying they are allowed to collect metadata and that “no Canadian communications were targeted, collected or used”. As we know now, metadata, which includes, among other things, a person’s location and who they are talking to, can contain more information on a person than the content of their communications. Ronald Deibert, a prominent Canadian cyber security expert, told the CBC that he saw “no circumstances in which this would not be illegal under Canadian law, our Charter, and CSE mandates.”
– In January 2015, documents leaked by Snowden revealed that a covert CSE operation codenamed LEVITATION taps into Internet cables and analyzes records of up to 15 million downloads daily from popular websites commonly used to share videos, photographs, music, and other files in several countries across Europe, the Middle East, North Africa, and North America.
– In February 2015, documents leaked by Snowden suggest CSE has engaged in mass Internet surveillance of file-sharing sites, and collects massive amounts of Internet traffic through 200 “Internet backbone” sites worldwide through a program called EONBLUE. Bill Galbraith, the executive director of the CSE commissioner’s office, said he could not discuss whether the office is looking into these disclosures.
– In April 2015, top-secret documents obtained by the CBC showed CSE has developed a vast arsenal of cyberwarfare tools alongside its U.S. and British counterparts to hack into computers and phones in many parts of the world, including in friendly trade countries like Mexico and hotspots like the Middle East. CSE wanted to become more aggressive by 2015, the documents also said.
– In January 2016, CSE commissioner Jean Pierre Plouffe tabled a report which stated that CSE had discovered in 2013 that it was sharing certain metadata with international partners without sufficiently protecting that information before passing it on. Former Conservative Defense Minister Rob Nicholson, when apprised of this security breach, withheld the information from Canadians and didn’t order CSE to correct the practice. Current Defence Minister Harjit Sajjan says the sharing won’t resume until he is satisfied that the proper protections are in place. The report also noted that “the metadata ministerial directive lacks clarity regarding the sharing of certain types of metadata with Five Eyes partners, as well as other aspects of CSE’s metadata activities.”
– In February 2016, Jean-Pierre Plouffe told a Senate committee that data were erased from the agency’s system, making it difficult to find out the number of people impacted by the privacy breach in the Five Eyes data sharing. “It’s not accidental,” Plouffe said in an interview about CSE breaking the law. “It’s because of a lack of due diligence.”
– The Commissioner’s reports to Parliament are first censored by the intelligence agency he is watching, then cleared by the minister politically responsible for any problems in the first place. The minister is required to present the sanitized version of the report to Parliament, but has no obligation to mention it is not exactly as originally written.
– Robert Décary, the CSE Commissioner in 2012-2013, has found a small number of records suggesting the possibility that some activities may have been directed at Canadians, contrary to law, and reported that a number of CSE records relating to these activities were unclear or incomplete. He was thus “unable to reach a definitive conclusion about compliance or non-compliance with the law”.
– All CSE commissioners have also expressed their “continuing concern with CSE’s record-keeping practices.” Robert Décary “identified the absence of certain historical information in a CSE system and database relating to foreign signals intelligence collection” which helps CSE determine “that entities of foreign intelligence interest are indeed foreign and located outside of Canada, as required by the National Defense Act.” The absence of the information limited the Commissioner’s ability to assess the lawfulness of the CSE activities in question.
– In the 2015 Report on Plans and Priorities, the Commissioner said that “The office has no authority to enforce specific actions by CSE”. In other words, the Commissioner can make recommendations for changes in CSE’s policies and operations, but he does not have the power to compel the Minister or CSE to accept those recommendations.
– In the same report, the Commissioner stated that “cost sharing related to central agency initiatives and fiscal restraint measures are reducing the flexibility of the office’s available funding. CSE, however, is growing and its activities are changing in response to its changing environment. The risk that the capacity of the office to conduct sufficient review to provide the necessary assurances to the minister will be exceeded is a constant concern.”
– In February 2016, University of Ottawa professor Wesley Wark writes that the fact that the spy watchdogs have demonstrated they can do their job, does not mean, as the Conservatives would have it, that the job they do is adequate. The existing watchdog agencies are shackled in their ability to respond to the new realities of expanded, more complex intelligence operations, and of higher levels of public expectations around transparency. They cannot follow the “threads” that connect the interconnected world of multiple Canadian intelligence agencies beyond their remit. They remain siloed and unstrategic in their review capacity. The existing spy watchdogs are constrained by a focus on issues of legality and government authority and not able to stretch their mandates to answer key questions about effectiveness. They are shackled to secrecy laws, which limit their ability to tell the full story of what they uncover, except to those within the “ring of secrecy.” That ring of secrecy does not, at the moment, include Parliament and its standing committees. So Parliament receives reports from the review agencies that it cannot fully understand or probe. The same goes for the media.
Budget: $520 M
The Canadian Security Intelligence Service (CSIS) is Canada’s civilian security intelligence agency. The Director of CSIS, under the direction of the Minister of Public Safety, has control and direction over CSIS and all matters connected with CSIS. CSIS is mandated to collect, analyze and retain information and intelligence regarding activities that, on reasonable grounds, may be suspected of posing a threat to the security of Canada. CSIS reports to and advises the federal government on these threats.
CSIS must obtain a judicial warrant to intercept communications, obtain documents or information or enter premises covertly. To obtain a warrant, CSIS must have permission from the Minister of Public Safety to apply to a Federal Court judge. It must then demonstrate on evidence that there are reasonable grounds to believe that the warrant is necessary to investigate a threat to the security of Canada, or the capabilities, intentions or activities of foreign states or foreign nationals.
Budget: $2.7 M
The Security Intelligence Review Committee (SIRC or the Committee) was established in 1984 as an independent, external review body which reports to the Parliament of Canada on the performance of the Canadian Security Intelligence Service (CSIS or the Service). Parliament has given CSIS extraordinary powers to intrude on the privacy of individuals. SIRC ensures that these powers are used legally and appropriately, in order to protect Canadians’ rights and freedoms. To do this, SIRC examines operations of the Service and investigates complaints. By preparing “snapshots” of highly sensitive CSIS activities, SIRC helps Parliament to determine whether CSIS is discharging its mandate effectively.
|– LEGISLATION: With C-44, Bill C-51 substantially broadens the powers held by CSIS, allowing it to directly disrupt activities. The bill also allows judges to unprecedently grant warrants authorizing CSIS to violate Charter rights. We recently learned that federal agencies and CSIS have used C-51’s information-sharing powers, and disruption powers several times already even though the Trudeau government has promised to amend these problematic elements of the law. The government has also issued guidance to CSIS on using C-51 but most of the instructions won’t be made public.
– ACTIONS: CSIS tapped calls between a lawyer and his clients, it lied to the court to obtain a warrant to spy on Canadians exposing them to risks of torture, it lied to the court about the honesty of witnesses, it has allegedly been harassing and spying on environmental and human rights activists and Muslim Canadians for years, it doesn’t know for sure whether its operatives broke the law by funding terrorist groups, and it improperly obtained taxpayer information from the Revenue Agency without a warrant.
– REVIEW: The Harper government abolished the office of the inspector-general, which many considered much more efficient than SIRC. SIRC said continued vacancies on the five-person board, the inability to investigate CSIS operations with other agencies, and delays in CSIS providing required information are “key risks” to the committee’s mandate. Furthermore, there has been no consequences for the actions listed above, even for those denounced by SIRC – as SIRC’s recommendations are non-binging – and the Trudeau government has been fighting to make blanket immunity of CSIS sources retroactive thus preventing redress for torture survivors and accountability for CSIS.
LEGISLATION: In conjunction with an earlier bill that is now law (C-44) – which allows CSIS to violate international law and the sovereignty of foreign nations either directly or indirectly through the use of CSEC and the Five Eyes, per example, contrary to prior Supreme Court decisions – the Anti-terrorism Act of 2015 (formerly Bill C-51) substantially broadens the powers held by CSIS, transforming it from an intelligence agency to an organization with very broad authority to directly disrupt activities. Anything goes except bodily harm, obstruction of justice, and violation of sexual integrity. Although the powers in C-51 generally require CSIS to get a warrant, the law allows judges to grant these warrants authorizing CSIS to violate fundamental rights under the Canadian Charter of Rights and Freedoms. The role of judges in Canada’s system is to uphold the Constitution and ensure that any restrictions that the government places on our rights are justified and reasonable. The new warrant powers are a radical change that turn our constitutional system on its head.
In March 2016, we learned that at least four federal agencies – including CSIS – have used C-51’s controversial information-sharing powers, and CSIS has used disruption powers two dozen times since the fall of 2015 – even though the Trudeau government has promised to amend these problematic elements of the law. Furthermore, we learned that the federal government has issued guidance to CSIS on using contentious new anti-terrorism laws but that most of the instructions won’t be made public.
– Since 2001, there have been multiple news stories about complaints of harassment by CSIS agents from the Muslim community, including at their workplace thus jeopardizing jobs, and complaints about the presence of CSIS spies in many mosques. There is also an ongoing lawsuit against the Canadian government alleging CSIS launched a smear campaign against the complainant, painting him as a terrorist and pedophile because he refused to be an informant.
– For many years now, CSIS has been harassing human rights activists around Canada, visiting their homes, talking to their friends and families, intimidating and frightening them with their presence, questions and insistence. One of them filed a formal complaint against CSIS over his right to lawful dissent in February 2015. The activist had an hearing in front of the SIRC in September. The SIRC has not yet reached a decision.
– In 2012, the Crown belatedly admitted that CSIS (and the Canada Border Services Agency) had tapped all of lawyer Rocco Galati’s telephone calls with his clients related to a 1999 case. It seems SIRC has not investigated this matter at all.
– In November 2013, the Federal Court took CSIS to task for using CSEC and the international “Five Eyes” intelligence alliance to monitor the electronic communications of two Canadian terror suspects when they were abroad because CSIS failed to mention they were going to do that when they ask the court for a warrant, even though, as Justice Mosley noted, this “carries the risk of the detention of or other harm to a Canadian person based on that information. Given the unfortunate history of information sharing with foreign agencies over the past decade and the reviews conducted by several royal commissions, there can be no question that the Canadian agencies are aware of those hazards.” A decision was made by CSIS officials in consultation with their legal advisors to strategically omit that information. Mosley found that an unspecified number of additional warrants on fresh or renewed applications had been issued by the court and that in the majority of these cases, if not all, CSIS asked CSEC to get help from its foreign partners.
– Mosley has previously found CSIS witnesses have failed in their duty of candour to the court. Indeed, one Toronto man, Hassan Almrei, faced a decade-long nightmare of solitary confinement and house arrest because a government witness had lied to the court during a secret hearing, while in the Mohmed Harkat secret trial case, another federal court judge stated that CSIS’s failure to be honest led to the finding that it is “necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in this proceeding.”
– A civil liberties group says newly disclosed CSIS records on protest surveillance bolster its formal complaint that spies went too far in eyeing environmental activists. The British Columbia Civil Liberties Association has asked SIRC to consider the documents – which reveal CSIS deliberations on the proposed Northern Gateway pipeline – as it investigates the spying allegations. The association filed a complaint with the review committee in February 2014 after media reports suggested that CSIS and other government agencies consider opposition to the petroleum industry a threat to national security. The complaint also cited reports that CSIS had shared information with the National Energy Board about “radicalized environmentalist” groups seeking to participate in the board’s hearings on Enbridge’s Northern Gateway project.
– In January 2016, we learned that CSIS doesn’t know for sure whether its operatives broke the law by funding terrorist groups. In its yearly report to Parliament, SIRC said the spy agency “cannot systematically attest as to whether or not its past human source operations have already violated” a section of Canadian law that prohibits funding Al-Qaida or the Taliban. As a result, SIRC asked CSIS to figure out “the full scope of potential violations.”
– In January 2016, we learned that CSIS improperly obtained taxpayer information from the Canada Revenue Agency without a warrant. And it happened more than once. That’s according to SIRC’s annual report. SIRC also determined that the overall management of the first incident was inadequate, because CSIS operated, “under the assumption that this was an isolated event until SIRC apprised them of its findings.” As well, SIRC learned that CSIS told the federal Court and the minister of public safety that all of the taxpayer information obtained without a warrant had been deleted from its operational database. That was not the case. “In fact, most of the information remained within the database until brought to CSIS’s attention by SIRC,” the report states.
– In 2012, the Harper government abolished the office of the inspector-general for CSIS. Eva Plunkett, the former Inspector General who was, once upon a time, the Public Safety minister’s eyes and ears inside Canada’s spy agency, spent nearly a decade routinely issuing reports that diplomatically raised the alarm about CSIS’s questionable conduct. In an interview with iPolitics in April 2015, she said that the government’s civilian oversight body, the Security Intelligence Review Committee, was a “joke”. In her final report as IG in 2012, Plunkett informed the federal government that CSIS often flouts its own policies and makes “numerous” errors in reporting on intelligence matters which undermine the spy service’s credibility and reputation. She also noted that, despite the IG’s small staff (eight people) and budget (a paltry $1 million) “it is the only independent, impartial resource available to the (Public Safety) Minister to support his responsibility and accountability for an organization which works in secret but has been given highly intrusive powers.”
– SIRC’s effectiveness is dependent on CSIS’s timely provision of information. In those cases where there are delays in receiving information, SIRC is at risk of being unable to complete its reviews and investigations in a timely manner.
– John Farrell — a former Toronto gang leader turned postal inspector, turned CSIS dirty-tricks operative – told journalist Andrew Mitrovica that many CSIS officers considered the spy service’s review agency, SIRC, little more than a nuisance. He also informed him that seasoned CSIS officers often colluded to mislead SIRC’s handful of raw, overworked and gullible “investigators.”
– In its 2015 plans and priorities report, SIRC said continued vacancies on the five-person board, the inability to investigate CSIS operations with other agencies, and delays in CSIS providing required information are “key risks” to the committee’s mandate. And these concerns were shared with Parliament before the adoption of Bill C-51 (the Anti-terrorism Act of 2015) which have significantly increased CSIS’s powers.
– In February 2016, in an interview with iPolitics, Eva Plunkett, the former Inspector-General of CSIS, said she wants to know if and when anyone at CSIS would be held accountable for obtaining tax information without a warrant, an egregious breach of Canadians’ privacy by intelligence officers who are supposed to abide by the law. You’d think that sort of thing would constitute a firing offence for any government official, let alone the nation’s top spy. The fact that CSIS director Michel Coulombe — who asked SIRC to look into what amounts to the state-sanctioned misappropriation of tax records only after a Federal Court judge started asking questions — still has his job offers yet more evidence that CSIS and its senior officers are immune from any real measure of accountability, under both Liberal and Conservative governments.
– In February 2016, the Liberal government decided to take up the former Conservative government’s legal fight against an apology and compensation for three Canadians tortured in the Middle East, despite voting in favour of the former detainees’ cause while they sat in opposition. As well, in aggressively defending the actions of CSIS and trying to prevent the release of thousands of unredacted documents that a judge is now poring over, the Liberals are going further than their Conservative predecessors did to protect CSIS sources. Lawyers for Prime Minister Justin Trudeau’s Liberal government are seeking retroactive blanket anonymity for spies and their sources and have filed an appeal in a civil lawsuit launched by the three men with that goal in mind. A Conservative bill last year, C-44, which enacted source protection, was not made retroactive. Lawyer Phil Tunley, who is leading the team of counsel to the men, is shocked by the moves of a Liberal government that explicitly promised to bring accountability to the nation’s national security regime. “The case is about accountability,” Tunley said in an interview. “If you remove the courts from the oversight of CSIS management of its human sources and you basically say no court can ever look behind and see whether a source really is a confidential source or if they’re telling the truth… there’s no accountability in the courts. It’s an extraordinarily draconian measure.”
– Since the late 1990s, journalist Andrew Mitrovica has been raising the alarm about how the spy service routinely abuses its extraordinary powers, alongside lawyers Paul Copeland and Clayton Ruby, academics like Reg Whitaker, Maureen Webb, Stuart Farson, Steven Hewitt and Sharryn Aiken, and journalists like Canadian Press reporter Jim Bronskill, freelance writer Mathhew Behrens and Now magazine senior news editor Enzo DiMatteo, who have tried for years to warn Canadians about the absence of true oversight for this largely unaccountable intelligence agency.
Budget: $2630 M
The Royal Canadian Mounted Police Act (RCMP Act) establishes and authorizes the RCMP to be Canada’s national police force. The RCMP’s responsibilities today consist of a patchwork of law enforcement activities and it is currently involved in a broad range of activities in support of its national security mandate. In general terms, these include collecting, maintaining and analyzing information and intelligence related to national security; sharing such information and intelligence with other agencies, both domestic and foreign; preparing analyses and threat assessments and developing other methods of support for internal and external purposes; investigating crimes related to national security; investigating and countering activities to prevent the commission of crimes related to national security; and protecting specific national security targets.
Pursuant to ministerial directive, RCMP National Headquarters is responsible for coordinating virtually all activities relating to the RCMP’s national security mandate. In addition, the various branches, sections and units within the National Security Directorate are responsible for the analysis and management of national security information and intelligence, as well as the preparation of threat assessments and other national security information products. Much of the investigative work on national security matters is done at the divisional level. Such work is undertaken either by Integrated National Security Enforcement Teams (INSETs) or National Security Investigation Sections (NSISs). INSETs are teams made up of RCMP members and personnel seconded from other police forces and government agencies. They are located in Vancouver, Toronto, Ottawa and Montreal. RCMP divisions without an INSET have an NSIS, which carries out the same function, but is not integrated with other agencies.
Budget: $10 M
The Civilian Review and Complaints Commission (CRCC) for the Royal Canadian Mounted Police is an independent agency created by Parliament and is not part of the Royal Canadian Mounted Police (RCMP). It was created in 2013 to replace the Commission for Public Complaints Against the RCMP (CPC). The Commission’s fundamental role is to provide civilian review of the conduct of the RCMP members in carrying out their policing duties, thereby holding the RCMP accountable to the public. The Commission ensures that complaints about the conduct of RCMP members are examined fairly and impartially. Its findings and recommendations help identify and remedy policing problems which stem from the conduct of individual RCMP members or from deficiencies in RCMP policies or practices. The Commission also conducts reviews of specified RCMP activities, reports to provinces which contract RCMP services, conducts research, program outreach and public education, and provides independent observers to investigations of serious incidents involving RCMP members. It is important to note that the Commission’s recommendations to the RCMP are not binding.
|– LEGISLATION: A law was passed to retroactively make legal the illegal destruction of long-gun registry records.
– ACTIONS: Erroneous information sent to foreign authorities led to the detention and torture of 4 Canadian citizens, 3 have still not been compensated. The RCMP commissionner is asking Parliament for warrantless access to telecoms subscriber data, contrary to a recent Supreme Court decision. The RCMP has continued warrantless requests for subscriber data for one month after the court ruled it unconstitutional. The RCMP has obtained the Blackberry encryption key in 2010 effectively enjoying years of access to Canadians’ personal cellphones without their knowledge.
– REVIEW: The Commissioner for the Arar Inquiry concluded that a complaint-based approach was unable to ensure that the RCMP respects rights and freedoms. His recommendations have yet to be implemented 10 years later. In 2016, the Privacy Commissioner has opened an investigation into the RCMP’s refusal to admit whether or not it uses the surveillance technology known as stingrays.
LEGISLATION: In January 2016, twelve of Canada’s 13 provincial and territorial information commissioners, as well as the Criminal Lawyers’ Association, are seeking intervener status in a case that challenges the former government’s unprecedented rewrite of an old law to get the RCMP and any other government official off the hook for illegally destroying long-gun registry records. The case was brought by federal information commissioner Suzanne Legault on behalf of individual Bill Clennett. The retrospective Conservative changes, backdated all the way to October 2011, served to short-circuit an active investigation by the Ontario Provincial Police into the government-backed actions of the RCMP. Repealing the changes, which became law last June, would presumably put the Mounties back under investigation. The new Liberal government asked for, and received, a three-month delay in the start of the trial last month as it mulls over its options.
– Between 2001 and 2004, Canadian citizens Maher Arar, Abdullah Almalki, Ahmad El-Maati and Muayyed Nurredin were detained in Syria (and one of them in Egypt) and tortured between several weeks and 2 years due to erroneous information RCMP officers shared with foreign authorities. Although they were all cleared of allegations of terrorist links, only Maher Arar was apologized to by the government of Canada and compensated.
– In November 2015, RCMP Commissioner Bob Paulson asks the Parliament for warrantless access to online subscriber information, contrary to a 2014 unanimous Supreme Court decision (R v. Spencer) upholding Internet privacy, the privacy of subscriber information, the right to anonymity and the requirement for police authorities to obtain a warrant before accessing subscriber information.
– Financial records obtained by VICE through the Access to Information Act show that the RCMP continued to obtain information on Canadians from all major phone companies without warrants for at least a month after the Supreme Court ruled it unconstitutional.
In April 2016, Vice News reported that a high-level surveillance probe of Montreal’s criminal underworld shows that the RCMP has had a global encryption key for BlackBerry devices since 2010. RCMP’s reports filed in court do not disclose exactly where the key came from. But, as one police officer put it, it was a key that could unlock millions of doors. Government lawyers spent almost two years fighting in a Montreal courtroom to keep this information out of the public record.
– In 2006, Justice O’Connor, Commissioner for the Arar Inquiry, concluded that existing accountability and review mechanisms for the RCMP’s national security activities are not adequate in large part because of the evolution and increased importance of that national security role. Among the more significant changes have been enhanced information sharing, new legal powers and responsibilities, and increased integration in national security policing. He has also been influenced by the Canadian and international experience with both policing and security intelligence review, and the inability of a complaint-based approach to provide a firm foundation for ensuring that the often secret national security activities respect the law and rights and freedoms. Finally, he concluded that the difficulties that the CPC has encountered in obtaining access to information from the RCMP can undermine the effectiveness of its review function and public confidence in the effectiveness of the review. Justice O’Connor’s recommendations have yet to be implemented.
– In April 2016, the Office of the Privacy Commissioner – not the CRCC – has opened an investigation into the RCMP’s refusal to admit whether or not it uses the surveillance technology known as stingrays, formally called International Mobile Subscriber Identity (IMSI) catchers. It is used to capture the identities of all the cellphones in a designated area without the knowledge of the users. During the course of an investigation, the privacy commissioner typically determines if any privacy laws have been broken and makes recommendations on future policy. The complaint was filed by Laura Tribe, a digital rights specialist for free speech advocate OpenMedia, a partner of ICLMG.
Bonus: The Canadian Border Services Agency
In March 2016, two migrant detainees died while in CBSA custody during the same week, prompting calls from human rights and refugee advocates for an investigation into those deaths and a long overdue oversight and review mechanism for the CBSA. A few weeks before, we learned that the CBSA had detained in solitary for 3 weeks a 16-year-old Syrian boy without any cause or charges. We also found that the CBSA could be responsible for deporting refugees to torture because of their irresponsible reporting. The Canadian Council for Refugees has come up with a model for CBSA accountability.
There are 21 federal departments and agencies with national security responsibilities – including the Canadian Border Services Agency (CBSA), the Financial Transactions and Report Analysis Centre (FINTRAC), Foreign Affairs, National Defence, and Transport Canada. Only the 3 agencies in the table above have some sort of review mechanism – which we have seen is highly inadequate.
Commission of Inquiry into the case of Maher Arar
The Inquiry, presided by Justice Dennis O’Connor, was established on February 5, 2004 to investigate and report on the actions of Canadian officials in relation to Maher Arar. Justice O’Connor concluded that erroneous information sharing by Canadian officials with the US authorities have contributed to the rendition, detention and torture of Maher Arar. The government has since apologized and compensated Mr. Arar.
The Commission was also mandated to recommend an arm’s length review mechanism for the activities of the Royal Canadian Mounted Police with respect to national security.
Although there have been numerous bills introduced in order to create a parliamentarian oversight committee for national security activities, and several motions and show of support for the implementation of Justice O’Connor’s recommendations for reform of the review mechanisms of national security agencies (see here), we still have neither. Prime Minister Trudeau promised to create a parliamentary oversight committee for national security activities – a great promise that we support unequivocally – but that is not enough. Here are below the recommendations of Justice O’Connor regarding the proper review of our national security agencies, made in 2006. We are asking the Canadian government to implement them today.
More information: Justice O’Connor’s recommandations
1. Enhanced Powers
a. In addition to the power to investigate and report on complaints, the review mechanism must have the authority to conduct self-initiated reviews, similar to those currently conducted by the Security Intelligence Review Committee (SIRC) in respect of CSIS operations, in order to review the RCMP’s national security activities for compliance with laws, policies, ministerial directives and international obligations, as well as for standards of propriety that are expected in Canadian society.
b. The second major enhancement involves giving the review mechanism extensive investigative powers, similar to those applicable to public inquiries under the Inquiries Act, to allow it to obtain all of the information and evidence necessary to conduct thorough and complete reviews and complaint investigations. These powers should allow the review mechanism to decide what information is necessary to fulfill its mandate and to subpoena documents and compel testimony from any federal, provincial, municipal or private sector person or entity.
2. Independent Complaints and National Security Review Agency for the RCMP
The most effective review of the RCMP’s national security activities will be achieved by a review mechanism that has jurisdiction to review all of the RCMP’s activities, including those related to national security. That mechanism should be located within a restructured Commission for Public Complaints Against the RCMP (CPC) – now the CRCC – with the significantly enhanced powers that Justice O’Connor recommends in his report and a new name, the Independent Complaints and National Security Review Agency for the RCMP (ICRA), to reflect its broader mandate.
3. Mandate and Powers
The ICRA should be able to conduct self-initiated reviews to ensure that the RCMP’s national security activities fall within its law enforcement mandate; that its information sharing practices are appropriate and conform to policy; that its relationships with other domestic and foreign agencies are properly regulated; that its national security investigators are properly trained and show proper respect for human rights and individual liberties; that its communications with foreign countries, including communications when Canadians are being detained abroad, are appropriate; and also to ensure that there is effective review of any operational activities of the RCMP that are integrated with those of other agencies.
4. Independent Review for Other Departments and Agencies
The government should extend independent review to the national security activities of the Canada Border Services Agency (CBSA), Citizenship and Immigration Canada (CIC), Transport Canada, the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) and Foreign Affairs and International Trade Canada (DFAIT). These five departments and agencies have significant involvement in the national security field. Their activities are frequently integrated with those of the RCMP and other federal entities that carry out national security activities. However, at present, none is subject to independent review of the kind I propose for the RCMP or the kind provided by SIRC and the CSE Commissioner in respect of CSIS and the Communications Security Establishment (CSE).
In Justice O’Connor’s view, SIRC is the body best positioned to review the national security activities of four of the above-mentioned entities: CIC, Transport Canada, FINTRAC and DFAIT. Since the national security activities of the CBSA are largely related to law enforcement, I consider ICRA to be best suited to provide independent review of those activities.
5. Statutory Gateways
In order to provide integrated review of integrated national security activities, Justice O’Connor recommends that the government enact statutory gateways linking the three independent review bodies — ICRA, SIRC, and the CSE Commissioner — to provide for the exchange of information, referral of investigations, conduct of joint investigations, and coordination and preparation of reports. Justice O’Connor notes that several other countries have adopted statutory gateways for similar situations.
6. Integrated National Security Review Coordinating Committee (or super-SIRC)
The government should establish a committee, to be known as the Integrated National Security Review Coordinating Committee (INSRCC), comprising the chairs of ICRA and SIRC, the CSE Commissioner and an outside person to act as committee chair, to oversee the review of integrated national security activities. In particular, INSRCC would ensure that the statutory gateways are functioning as intended, provide a unified intake mechanism for complaints regarding national security activities of federal entities, and report to the federal government on accountability issues relating to Canada’s national security practices and trends, including the effects of those practices and trends on human rights and freedoms. INSRCC would not conduct any reviews itself. The independent review bodies would have sole responsibility in that regard.
7. Review in Five Years
Justice O’Connor recommend that the government appoint an independent person to examine how the review structure he proposes is functioning five years after its implementation. The national security landscape in Canada is constantly evolving to keep abreast of threats to our national security. It is vital that review and accountability mechanisms keep pace with operational changes.