CHAPTER IV:
Overview
A Word on Terminology
Leadership and Coordination
On-Going Leadership and Coordination
Coordination During A Security Offences Incident
Committee Observations and Recommendations
Oversight and Review of the Security and Intelligence Sector
Committee Observations and Recommendations
Parliamentary Review and Oversight
Committee Observations and Recommendations

Overview

Although small relative to the establishments of other G8 nations, the eleven core organizations, additional organizations on the periphery and the complex of interdepartmental committees that constitute Canada's security and intelligence community account for approximately one-half billion dollars in annual operating expenditures. In this light, the Committee reviewed the extent to which leadership and coordination exists within the community to avoid duplication of effort and to ensure the community pursues objectives and priorities that reflect each organization's mandate and Canada's policies and interests. Furthermore, many of the organizations within the security and intelligence community exercise invasive powers that impact, or have the potential to impact, on personal rights and freedoms.(73) In a country such as Canada, it is important that these powers be subject to some form of review to ensure they are being exercised in accordance with the law and the rules of natural justice. It is also important that people who feel aggrieved by the exercise of such powers have recourse to an independent review.

Currently, there are independent review or oversight bodies for the Canadian Security Intelligence Service, the Communications Security Establishment and the Royal Canadian Mounted Police. In addition, the Auditor General has the authority to conduct broad scope audits of any department and agency of the federal government and has conducted an audit of the Canadian security intelligence community. Specific recourse is also available through the Access and Privacy Commissioners and through statutes such as the Canadian Human Rights Act and the Privacy Act. Judicial review applies to the actions of the organizations within the security and intelligence community under the Canadian Charter of Rights and Freedoms, or as specifically provided for in individual statutes (e.g. the Canadian Security Intelligence Service Act). Although important, judicial review is not included within the ambit of "review" or "oversight" for purposes of this Report.

Another area of study for the Committee was the extent to which Canada's security and intelligence community is, or should be, subject to some form of parliamentary review or oversight.

 A Word on Terminology

The terms "review" and "oversight" are often confused when used in the context of security and intelligence. For purposes of this Report the Committee has defined "Review" as the post-facto audit of actions taken or policies pursued by a security or intelligence organization. Although they may make recommendations, review bodies rarely have the authority to impose their will aside from whatever powers of moral suasion they can muster. "Oversight" bodies on the other hand exercise some on-going control over the policies, procedures and activities of the agencies for which they are responsible. Review and oversight bodies can exist in either or both the administrative and legislative branches of government.

Leadership and Coordination

The Committee was impressed by the substantial progress that has evidently been made in leadership and coordination of the security and intelligence sector since the last Special Committee on Terrorism and Public Safety reported in 1989.

Leadership and coordination are currently conducted within the administrative branch and operates at two levels. One level is on-going, day-to-day leadership and coordination of the community. The other level is leadership and coordination of the community during an actual security incident.

Table 5

Table 5 illustrates in schematic form the security and intelligence community within the Government of Canada and the leadership and coordination infrastructure for the federal security and intelligence community. The pivotal role in this infrastructure is played by the Privy Council Office. This role is entirely appropriate given that the Privy Council Office is the Prime Minister's department as well as the Cabinet secretariat. Ultimately, the Prime Minister is responsible for the security of Canada. Given the number of departments and agencies with responsibilities for security and intelligence, it is not only appropriate, but also necessary that the Privy Council Office assist the Prime Minister in setting the priorities for the entire security and intelligence community within the federal Government and then monitoring and co-ordinating the activities throughout the community to ensure that those priorities are met.

The previous Senate Special Committees on Terrorism and Public Safety noted that the Cabinet Committee on Security and Intelligence had fallen into disuse and it rarely, if ever, met. Those Committees expressed concern, therefore, that there was no active, formal mechanism by which the Prime Minister and Cabinet exercised on-going control, direction and accountability over the security and intelligence community. The Cabinet Committee on Security and Intelligence no longer exists, even on paper. Instead the Ministers Meeting on Security and Intelligence ("MMSI") chaired by the Prime Minister(74) meets as needed and at least once each year. The essential function of the Ministers Meeting on Security and Intelligence is to establish priorities for the security and intelligence community, meaning the foreign and defence intelligence priorities as well as the national requirements for security intelligence. Ministers may also meet on an ad hoc basis at the call of the Prime Minister when specific policy or operational issues arise pertaining to the security and intelligence sector. The Cabinet Committee on the Social Union has also been designated as the forum for the discussion of security and intelligence issues that arise in the context of broader policies.

Beneath this political overlay is the bureaucratic coordination infrastructure, either housed within the Privy Council Office in the form of secretariats, or conducted by interdepartmental committees, the most important of which are chaired by officers of the Privy Council Office. Within the Privy Council Office is the Security and Intelligence Coordinator, supported by the Assistant Secretary, Security and Intelligence Secretariat. The Secretariat monitors and coordinates the community on a day-to-day basis within the framework of policies and priorities established by the Ministers Meeting on Security and Intelligence.

The most important interdepartmental committee for the security and intelligence community is the Interdepartmental Committee on Security and Intelligence ("ICSI"). The Interdepartmental Committee on Security and Intelligence is a deputy minister level committee chaired by the Clerk of the Privy Council and Secretary to the Cabinet. It reviews major policy, resource and operational proposals relating to security and intelligence being made to Cabinet, advises the Ministers Meeting on Security and Intelligence on priorities for the community and considers major intelligence issues.⁽⁷⁵⁾

The Interdepartmental Committee on Security and Intelligence Executive Committee is chaired by the Coordinator, Security and Intelligence and meets as required, but more frequently than the Interdepartmental Committee on Security and Intelligence, to ensure senior officials' attention to key policy, operational and resource issues impacting on the community as they arise.

The Intelligence Policy Group ("IPG") is an assistant deputy minister level committee chaired by the Assistant Secretary to the Cabinet, Security and Intelligence. It meets bi-weekly and is the principal forum for policy and operational coordination within the community.

The Intelligence Assessment Committee ("IAC") also plays a coordination role. Its function is to provide analytical reports and assessments to the Prime Minister, Ministers and senior officials based on intelligence and other contributions from a number of organizations within the community and from elsewhere.

Unlike the United States(76), for example, there is no single resources envelope for the security and intelligence community within the Government of Canada. Each organizational element of the community is part of individual envelopes that correspond to individual ministerial portfolios. The Coordinator, Security and Intelligence, helps to manage and negotiate within the sector to ensure resources are sufficient to meet identified priorities and objectives. The Coordinator will also bring any resource issues to the attention of Cabinet for resolution.

In addition, the Treasury Board Secretariat is a member of the Interdepartmental Committee on Security and Intelligence and the Treasury Board representative is invited to attend the Interdepartmental Committee on Security and Intelligence Executive Committee meetings when major resource proposals or issues are on the agenda. As part of its normal mandate, the Treasury Board examines departmental expenditure proposals relating to security and intelligence programs.(77)

As indicated earlier, the Canadian security and intelligence community is relatively small. Government witnesses told the Committee that this allows for, and indeed encourages, an "inherent cohesion" that is impossible in larger security and intelligence communities. In addition to the formal interdepartmental structure, therefore, there exists a complex of interpersonal and professional relationships and communication links.

Government witnesses before the Committee testified that the coordination mechanisms work well and the spirit of cooperation and attention to security and intelligence matters have increased substantially since the last Senate Special Committee on Terrorism and Public Safety reported.

One of the issues raised by both previous Special Committees on Terrorism and Public Safety was the lack of cooperation between the Royal Canadian Mounted Police and the Canadian Security Intelligence Service. This lack of cooperation existed at all levels: from a failure to communicate an actual threat in the case of a Punjabi Cabinet Minister visiting Canada, to the inability of the Canadian Security Intelligence Service to access the Canadian Police Information Centre ("CPIC"), because, in the words of the Royal Canadian Mounted Police, "the Canadian Security Intelligence Service is not a police organization". The Special Committees were not impressed with this explanation and characterized it as a "turf battle."

Coordination and cooperation between the Royal Canadian Mounted Police and the Canadian Security Intelligence Service appear to have substantially improved. Memoranda of Understanding between the Royal Canadian Mounted Police and the Canadian Security Intelligence Service are now in place on the exchange of liaison officers across Canada and on the sharing of intelligence and, according to witnesses, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service openly share threat assessments on events and visits involving Internationally Protected Persons ("IPP's"). The Canadian Security Intelligence Service has also been granted access to the Canadian Police Information Centre by virtue of a Memorandum of Understanding.

The Committee suggests that a similar agreement be entered into to allow the Canadian Security Intelligence Service access to the Violent Crime Linkage Analysis System ("ViCLAS"). The Violent Crime Linkage Analysis System is a national computer-based system set up by the Royal Canadian Mounted Police and linking all major police forces in Canada. It is designed to disseminate profiles of crimes and criminals in order to assist in linking crimes committed in different police jurisdictions.

Coordination During A Security Offences Incident

Terrorist and other security offences occur often without warning and can vary enormously in terms of intensity, the length of time for the incident to play out, international implications, the nature of the threat and the appropriate response. It is, therefore, impractical to have a hard and fast "rule book" of who does what, when and how in response to an actual incident. Coordination protocols and mechanisms can and should, however, be in place and be periodically tested and updated.

For domestic terrorist incidents, the Solicitor General is the "lead Minister" supported by his Ministry, the Royal Canadian Mounted Police, the Canadian Security Intelligence Service and the interdepartmental infrastructure. For incidents involving Canadians or Canadian interests outside of Canada, the Minister of Foreign Affairs is designated the lead Minister for purposes of the Government of Canada's response. It is recognized by all concerned that circumstances may compel the Prime Minister (or his designate) to assume responsibility for the government's response to a particular incident.

The coordination mechanisms and protocols for responding to a terrorist incident are set out in the National Counter-Terrorism Plan ("NCTP"). The National Counter-Terrorism Plan and the Committee's observations and recommendations concerning it are contained in Chapter II.

Committee Observations and Recommendations

From testimony before the Committee and from all other evidence available to the Committee, substantial progress has clearly been made in enhancing central coordination and leadership of the security and intelligence community. The Auditor General concluded that, "Substantial arrangements for control and accountability are in place, and progress has been made in recent years in strengthening them."(78) For that progress, the government and the officials involved deserve praise. The Committee would like to make a few observations.

The Committee welcomes the new Ministers Meeting on Security and Intelligence.⁽⁷⁹⁾ Since January 1, 1997 there have apparently been six sessions of this group, or ad hoc meetings of ministers on security and intelligence. The previous Senate Special Committees were concerned to note the effective demise of the Cabinet Committee on Security and Intelligence. It is crucial that there be a formal process for the Ministers in the security and intelligence community to set the foreign intelligence, military intelligence and security intelligence priorities to guide all the activities of the sector in collection, assessment and production of intelligence. This is the role now fulfilled by the Ministers Meeting on Security and Intelligence. The Committee also heard that there is a marked improvement from a decade ago in the attention given to these issues, including at these very high levels. Given the sensitivity and importance of the activities conducted by the security and intelligence community, the Committee believes this kind of effective political control, direction and accountability is absolutely essential.

While coordination of policies and priorities appears to be effective, the Committee is concerned about the coordination of resource allocation. Government witnesses before the Committee concentrated on the coordination of policies and priorities, but gave much less attention in their testimony to the coordination of resources. The Committee suggests the government examine the feasibility and value of a single security and intelligence envelope as well as the value of instituting a greater role for the Ministers Meeting on Security and Intelligence in resource allocation. This would enhance Cabinet's ability to avoid duplication, conflict and gaps in activities and to add leverage to the coordination of polices, priorities and operation.

The Committee acknowledges that the Canadian security and intelligence community is relatively small and (at least in expenditure terms) is dominated by three organizations: the Canadian Security Intelligence Service, the Communications Security Establishment and the Royal Canadian Mounted Police. The Committee also acknowledges that informal coordination mechanisms are both inevitable and valuable. Notwithstanding, informal mechanisms are a poor substitute for formal ones in the security and intelligence sector. The sensitivity and importance of the activities conducted require unambiguous and transparent lines of authority as well as unambiguous lines of communication, direction, control and accountability.

Finally, the Committee believes it would be valuable to identify both formally and publicly the group of organizations or parts of organizations that constitute the federal security and intelligence community. Table 5, in this Report, is a start. The Committee notes that this has been done in the United States through Presidential Executive Order⁽⁸⁰⁾ and, in the United Kingdom, by legislation.(81) This will be discussed in more detail later on in this Chapter.

Oversight and Review of the Security and Intelligence Sector

Formally-constituted review mechanisms exist only for three organizations within the security intelligence community: The Canadian Security Intelligence Service, the Communications Security Establishment and the Royal Canadian Mounted Police. This Committee has examined the review mechanisms of the first two of these organizations(82).

The Canadian Security Intelligence Service has two review bodies, one "internal", the other "external". In corporate parlance, the former is akin to the internal auditor; the latter is akin to the external auditor. The Security Intelligence Review Committee (the external review body) is established under the Canadian Security Intelligence Service Act.⁽⁸³) It is comprised of three to five people (including the Chair) appointed by the Governor-in-Council. Appointees to the Security Intelligence Review Committee must be Privy Councillors.

The Security Intelligence Review Committee's role as set out in section 38 of the Canadian Security Intelligence Service Act is to review generally the performance by the Canadian Security Intelligence Service of its duties and functions. The Security Intelligence Review Committee's role includes: conducting investigations of public complaints, reviewing reports of the Director of the Canadian Security Intelligence Service and the Inspector General, reviewing ministerial directives to the Canadian Security Intelligence Service, conducting investigations into reports submitted to the Security Intelligence Review Committee under the Citizenship Act, the Immigration Act and the Canadian Human Rights Act and reviewing complaints springing from denial of security clearances. The results of investigations of public complaints are reported to the complainant, the Minister and Director and, in the case of denials of security clearances, to the complainant and the deputy minister of the department concerned. In addition, the Security Intelligence Review Committee must make an annual report to the Solicitor General that is tabled in Parliament. The Security Intelligence Review Committee may, at the Solicitor General's request or at the Security Intelligence Review Committee's own initiative, prepare special reports for the Solicitor General "concerning any matter that relates to the performance of its duties and functions." ⁽⁸⁴⁾

The Inspector General (the "internal" review body) is also established under the Canadian Security Intelligence Service Act. The incumbent is appointed by the Governor in Council and reports to the Solicitor General. The mandate of the Inspector General is to monitor compliance by the Canadian Security Intelligence Service with its operational policies, to review the Canadian Security Intelligence Service's operational activities and to submit certificates to the Solicitor General confirming that the Canadian Security Intelligence Service has conducted its activities lawfully and without unreasonable or excessive exercise of its powers.

Both the Security Intelligence Review Committee and the Inspector General have unrestricted access to information generated or retained by the Canadian Security Intelligence Service. Both the Security Intelligence Review Committee and the Inspector General indicated complete satisfaction to this Committee that their access rights are respected by the Canadian Security Intelligence Service.

The relationships between the Canadian Security Intelligence Service and its review bodies appear to be working well, although there appears to be some tension between the Security Intelligence Review Committee and the Canadian Security Intelligence Service. Such tension is perhaps both understandable and reassuring given the Security Intelligence Review Committee's mandate.

The Commissioner for the Communications Security Establishment was appointed in 1996 under the Inquiries Act for a period of three years. A resolution to create the post was passed in the House of Commons. Although one would expect the review function to be extended when the current Commissioner's term expires, there is no obligation, or commitment by the government, to do so. The Communications Security Establishment Commissioner investigates whether the Communications Security Establishment operates in compliance with the law.⁽⁸⁵) The Commissioner decided, however, not to review complaints pertaining to actions that took place prior to his appointment.⁽⁸⁶) The Commissioner may not investigate any matter for which other avenues of redress exist by statute. The Commissioner may report to the Minister for National Defence and, on a case-by-case basis, may also report to the Attorney General of Canada. Each year the Commissioner submits a general report to the Minister of National Defence for the Minister to table in Parliament. The Commissioner consults with the Privy Council Office on any report (including his reports to the Minister) to ensure they contain no information that prejudices the security of Canada or intelligence sources. When the Commissioner investigates a complaint from a member of the public, the Commissioner may report his findings only to the Minister, not to the complainant. In his testimony before the Committee and in his Annual Report (1997-98) the Commissioner declared this situation unsatisfactory.

Also in his testimony and in his annual reports, the Communications Security Establishment Commissioner recommended that a permanent review body for the Communications Security Establishment be created by statute with a wider mandate than that of the Commissioner. More will be said of these recommendations later on in this Chapter.

Committee Observations and Recommendations

Review or oversight of all the organizations that constitute Canada's security and intelligence community and the community as a whole is underdeveloped. In the Committee's view, the activities of the community demand effective, broad scope review. In the case of the Communications Security Establishment, the Senate Committee strongly supports the Communications Security Establishment Commissioner's recommendation that the Communications Security Establishment be given a statutory base and that the statute also provide, for a permanent review body.

The Security Intelligence Review Committee model has much to commend it in terms of legislative base, mandate, organization and powers for purposes of review. Accordingly, the Senate Committee proposes that the Security Intelligence Review Committee model be used for the Communications Security Establishment. This begs the question as to whether the mandate of the Security Intelligence Review Committee should be extended to include the Communications Security Establishment, or whether a new "Security Intelligence Review Committee-like" review body should be set up for the Communications Security Establishment.

An argument was made before the Committee that the differences among organizations requires that the Canadian Security Intelligence Service and the Communications Security Establishment must each have its own review body. A concern was also expressed to the Committee that having a single review body would concentrate too much sensitive information in one organization or group of people. On the other hand, representatives of the Security Intelligence Review Committee felt that efficiencies could be gained by having the Security Intelligence Review Committee as the review body for both organizations. On balance, the Senate Committee proposes that a new review body be established by statute for the Communications Security Establishment.

The Committee did not study each organization within the security and intelligence community to the point required to recommend whether each required a review mechanism, or the type of review mechanism appropriate in each case. However, as a general principle, there should be a review mechanism for any organization with a security intelligence mandate that exercises powers that impact on the privacy and other civil rights of Canadians. The Committee urges the government to study the feasibility of creating one or more review bodies for the remaining organizations within the federal government's security and intelligence community.

Parliamentary Review and Oversight

The essence of Parliament's role in the British constitutional system is to act on legislative proposals made by the Ministry, to control public expenditures and to hold Ministers to account, both collectively and individually, for the exercise of their ministerial powers and for the general administration of their departments. In addition, Parliament exercises certain powers of administrative review, such as the review of regulations and other statutory instruments, which in Canada is done through the Standing Joint Committee of the Senate and the House of Commons for the Scrutiny of Regulations ("SJC").

The Canadian Security Intelligence Service was the first security intelligence agency in the federal government to be established by statute and to have a statutory review body. The Canadian Security Intelligence Service Act is still the standard in terms of statutory framework, the review mechanism itself and accountability linkages through the Solicitor General to Parliament.

It is perhaps instructive to review some history at this point, in particular how the McDonald Commission (which recommended the creation of a civilian security intelligence agency) and the government-of-the-day sought to balance external review, including parliamentary review, with the exigencies of a security intelligence operation. The McDonald Commission recommended that the Canadian Security Intelligence Service be established by an Act of Parliament, that the Minister have sufficient knowledge of the Canadian Security Intelligence Service's activities in order to properly account to Parliament and that a joint parliamentary committee be established in order "to scrutinize (the Canadian Security Intelligence Service's) activities with a view to ensuring that it fulfills the intentions of Parliament as set out in the organization's legislative charter".⁽⁸⁷)

The McDonald Commission's recommendations concerning the role of the Minister were implemented. Subsection 6(1) of the Canadian Security Intelligence Act specifies that the Director is responsible for the control and management of the Canadian Security Intelligence Service, but "under the direction of the Minister" and that both the Security Intelligence Review Committee and the Inspector General report to the Minister. This accomplishes the McDonald Commission's objective of having Ministers

"...possess the knowledge to answer questions about security intelligence activities... They may choose not to divulge in public some of the information which they have, but such non-disclosure will be of their own choosing and not because the information is kept from them by the security organization." ⁽⁸⁸)

Such a linkage is critical if Ministers are to be held accountable to Parliament.

McDonald's recommendations relating to a joint Senate and House of Commons committee of Parliament were not implemented. Instead, there were several compromises to recognize a role for Parliament in reviewing the Canadian Security Intelligence Service's operations.⁽⁸⁹) One was to require the Security Intelligence Review Committee to report annually to both Houses of Parliament. Such reports could contain whatever recommendations for "changes" the Security Intelligence Review Committee might propose. The second was the five year review entrenched in the Canadian Security Intelligence Service Act. Another was the requirement under the Act that the Prime Minister must consult with the leader of each official party in the House of Commons on proposed appointments to the Security Intelligence Review Committee. Another was the statutory requirement under subsection 34(1) of the Act that appointees to the Security Intelligence Review Committee must be Privy Councillors. The objective of the latter was to have experienced, known parliamentarians who could act, and be seen and accepted as acting, as almost a surrogate for Parliament in the review of the Canadian Security Intelligence Service and who could also better understand and respond to the requirements and prerogatives of parliamentarians. In the event, successive governments have ignored the intent of this compromise by making most of the appointees Privy Councillors just prior to their appointment to the Security Intelligence Review Committee.⁽⁹⁰) Of the eleven people appointed to the Security Intelligence Review Committee since its establishment, only two (Hon. Ronald Atkey and Hon. Jean-Jacques Blais) were already Privy Councillors.

In the security and intelligence community only one organization, the Canadian Security Intelligence Service, has been established by an Act of Parliament. The Communications Security Establishment was transferred to the Department of National Defence for administrative purposes in 1975 through an Order-in-Council under the Public Service Rearrangement and Transfer of Duties Act.⁽⁹¹) Other elements of the community have been set up administratively within departments and agencies, or by inter-departmental administrative arrangement. The Committee suggests, however, that because of the importance and sensitivity of the activities they conduct, a special type of accountability is required.

Section 56 of the Canadian Security Intelligence Service Act called on Parliament to establish a committee, after the Act had been in force five years, to undertake "a comprehensive review of the provisions and operation of the Act." This review was conducted by a Special Committee of the House of Commons, which tabled its report in September, 1990.⁽⁹²) The government of the day intended to conduct another review in 1998. The current government has yet to follow through on that commitment. The Committee also notes that the House of Commons Standing Committee on Justice and the Solicitor General established the Sub-Committee on National Security in the 34th Parliament. The Sub-Committee has not yet been re-established in the current Parliament.

Upon completion of the five-year review, the Special Committee and its Chairman and Director of Research expressed dissatisfaction with the review, in particular with their inability to obtain from the Canadian Security Intelligence Service, the Security Intelligence Review Committee, or the Inspector General the information that they considered necessary to perform the review as required by the statute. Among its recommendations, the Special Committee proposed the creation of a permanent sub-committee (of what was then the House of Commons Standing Committee on Justice and the Solicitor General) as the parliamentary review body for the security and intelligence sector.

The Special Committee was very clear that its intention in making this recommendation was not to impose an additional level of review on the Canadian Security Intelligence Service; rather, it was seeking to oversee the activities of the Security Intelligence Review Committee and the Inspector General - to watch the watchers. The Committee Report stated:

"The Committee is also cognizant of the fact that the review process places burdens on organizations that are subject to review. It therefore wishes to be particularly careful not to impose on agencies such as the Canadian Security Intelligence Service an additional level of review. The Committee has already recommended that the Security Intelligence Review Committee should normally request the Inspector General of the Canadian Security Intelligence Service to conduct compliance reviews. The Committee is not recommending that the [proposed] sub-committee's research staff have a function similar to those (sic) of the Security Intelligence Review Committee or the Inspector General. Nor does it believe that the sub-committee would ask the Canadian Security Intelligence Service for information frequently. Such matters would be addressed through the Security Intelligence Review Committee. Rather the Committee believes that the sub-committee's role would be primarily three-fold. First, it would review budgets and make recommendations concerning the Main Estimates to the Standing Committee on Justice and Solicitor General or to such other committees as the House of Commons may consider necessary. Second, it would oversee the activities of the Security Intelligence Review Committee and the Inspector General by reviewing their work plans and reports. Third, it would undertake reviews of a general nature regarding security and intelligence matters that would be of interest to Parliament." ⁽⁹³⁾

Other parliamentary committees have also reviewed aspects of the security and intelligence community. For example, the House of Commons Standing Committee on Justice and the Solicitor General and the House of Commons Standing Committee on National Defence have each, from time to time, reviewed those security and intelligence activities that fall within their respective mandates. Furthermore, from 1983 to the present, there have been a total of four Senate Special Committees each reviewing aspects of the security and intelligence community.⁽⁹⁴)

In addition to these parliamentary reviews, all or part of the security and intelligence community may be, and indeed has been, reviewed by other statutory officers and agencies under various federal statutes. These include the Auditor General, the Privacy Commissioner, the Commissioner of Official Languages, the Information Commissioner, the Canadian Human Rights Commission and, of course, the courts.

For example, in November 1996 the Auditor General prepared and tabled in the House of Commons a report to "inform Parliament about the nature, extent and functioning of the control and accountability arrangements in the intelligence community."⁽⁹⁵) When the Auditor General appeared before this Committee to discuss his report, he advised that it is his normal practice to follow up on audits after a period of two years and that he would be preparing a follow-up report on the Canadian intelligence community for tabling in Parliament in December 1998. In addition, the Information Commissioner conducted an audit of the Communications Security Establishment. In his 1995-1996 Annual Report, he indicated that he was satisfied that the Communications Security Establishment operates in compliance with the Privacy Act. He noted that there is no evidence that the Communications Security Establishment intentionally targets Canadians or monitors their communications and added that it uses strict procedures to minimize the possibility that information about Canadians will be inadvertently captured in monitoring foreign communications.

Throughout the hearings, Committee members sought to understand how Canada compares in terms of review or oversight of its security and intelligence community with that of other similar parliamentary democracies. It quickly became clear that there is no single accepted method to review or oversee such organizations.

In the United Kingdom, the Intelligence and Security Committee ("ISC") was established in 1994 to act as a general review body for several of the agencies conducting security and intelligence. However, while this is a committee of parliamentarians, it is not a parliamentary committee. While members are appointed by the Prime Minister, in consultation with the Leader of the Opposition, from sitting members of Parliament, the committee reports to the Prime Minister, not directly to Parliament. The Prime Minister is authorized to deposit reports not dealing with sensitive material before Parliament.

Australia is the only British-style parliamentary system with a standing committee that has review responsibilities for the security intelligence sector. However, it cannot initiate an investigation without parliamentary approval and most significantly, has no mandate to review activities considered to be of a security-sensitive nature. Moreover, the Australian Standing Committee of the House of Representatives on Procedure has, according to testimony to this Committee, recently recommended that the review committee be abolished because of an evident lack of interest.

Several witnesses from the security and intelligence community stated that there is no parliamentary review committee anywhere in the world in any parliamentary system that has anywhere near the access that the Security Intelligence Review Committee has to the Canadian Security Intelligence Service's files and to review of the Canadian Security Intelligence Service's operations.⁽⁹⁶) Indeed, the Solicitor General ⁽⁹⁷) stated that "most of the countries that are doing it [review and oversight] elsewhere are coming to Canada to see how we do it so well."

Committee Observations and Recommendations

"Quis custodiet custodes?"

(Who will watch the watchers?)

The security and intelligence community is more open today than ever before and certainly more so than a decade ago. This is particularly the case with the organizations that play a major operational or coordination role in the community, namely the Canadian Security Intelligence Service, the Communications Security Establishment and the Privy Council Office. The Committee also thinks it important to note the existence of a range of review mechanisms currently in place for the community.

The Committee is of the view, however, that there is still some room for improvement. The Committee heard, for example, from the Chairman and the Director of Research of the House of Commons Special Committee that conducted the five year review that their Committee was unable to obtain access to documents that they deemed to be important to the review. Partly as a consequence, they were unable to judge whether the Canadian Security Intelligence Service or its internal or external review bodies were operating properly. Furthermore, what might be called a "special purpose" review body⁽⁹⁸) created by statute and with direct linkages to Parliament exists only for the Canadian Security Intelligence Service. Finally, although this Committee heard no evidence that such is currently the case with the Security Intelligence Review Committee or the Communications Security Establishment Commissioner, this Committee is mindful of academic literature that suggests a risk of single purpose review bodies becoming "captured" by the bodies they were established to review. This is said to happen as the review bodies progress from "infancy" through to "maturity" and ultimately to "old age".

The Committee does not see the necessity to establish a permanent parliamentary committee as a special purpose body to review or oversee the Canadian Security Intelligence Service. Nor does the Committee see the need for such a committee to review the Communications Security Establishment specifically if, as this Committee proposes, a permanent "Security Intelligence Review Committee – like" review body is established by statute. It is not necessary and is probably counter-productive to duplicate, even in part, the activities of the Security Intelligence Review Committee and to subject the Canadian Security Intelligence Service and the Communications Security Establishment to another layer of review or a process of continuous review.

Nevertheless, the Committee believes that the nature of security and intelligence demands that there should be a central review body that has the capacity to conduct broad scope reviews of the entire security and intelligence community and individual organizations in it, including "watching the watchers", from time to time. If this central review body is to be an effective counterbalance, it is best located in a different milieu from the existing review bodies and should be completely independent of Ministers and the Ministry. This Committee recommends that this review body should take the form of a parliamentary committee.

The Committee proposes, therefore, that the Senate establish a standing Senate Committee on Security and Intelligence with a designated chair and membership, in order to ensure reasonable continuity. The Committee would conduct hearings, or otherwise meet, only upon receiving a specific reference from the Senate. In particular, the proposed committee should normally conduct broad scope review of the entire community, rather than specific reviews of individual organizations. In this regard it would be particularly useful for the proposed committee to focus on policies, issues or initiatives that affect the security and intelligence community as a whole and have not been examined by another parliamentary committee.

The proposed committee should also be as forward-looking as possible, helping the government and the security and intelligence community to stay ahead of events. Examples of specific references might include: any legislation pertaining to the Communications Security Establishment, or any other organization within the security and intelligence community; major policy initiatives pertaining to the security and intelligence community that do not fall within the mandate of another Senate committee; and post facto reviews of the performance of the security and intelligence in responding to major terrorist incidents or other security offences.

Perhaps the first reference to the proposed Committee could be a study of the need for a review mechanism for the remaining elements of the security and intelligence community and, if a review mechanism is required, the most appropriate mechanism or mechanisms. This Committee also recommends that the proposed Security and Intelligence Committee conduct a broad scope review of the security and intelligence community at least once every five years.

This Committee is concerned at difficulties experienced by previous parliamentary committees in gaining access to information held or generated by the security and intelligence organizations.

The oaths of secrecy by Members of the Security Intelligence Review Committee and the Inspector General evidently pose a problem. If the proposed committee is to work, in fact if any parliamentary review mechanism is to work, a solution must be found. It is unreasonable to expect a parliamentary committee to make judgements or determinations based on partial information. It is tempting to insist on Parliament's absolute right to information under Parliament's conventional authority to "send for persons, papers and records". However, experience has demonstrated that, in practice, this power cannot always be effectively exercised, as certainly would prove the case in the security and intelligence field.

Somehow, we have to reach a balance. The balance is between the legitimate requirement of the security and intelligence community to withhold information pertaining to specific operations, targets and intelligence sources; and Parliament's need to know in order to exercise due diligence and accountability.

It is unrealistic to presume that this balance will be achieved overnight. A relationship of mutual trust will have to develop between the proposed committee and the security intelligence community. If a relationship of trust is to develop, members of the proposed committee must never use sensitive information for partisan or public purposes and the security and intelligence community must not withhold information that the proposed committee has a legitimate need to know in order to perform its mandate.