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Print Copy

 

THE CANADIAN SECURITY INTELLIGENCE SERVICE

 

Prepared by:
Philip Rosen
Senior Analyst
Revised 24 January 2000


TABLE OF CONTENTS

ISSUE DEFINITION

BACKGROUND AND ANALYSIS

   A.  The Origins and Development of the Security Intelligence Service

   B.  Abuses by the Security Service

   C.  The McDonald Commission's Recommendations

   D.  The Canadian Security Intelligence Service Act

   E.  The Controversial Issues

   F.  1984 to Present

PARLIAMENTARY ACTION

CHRONOLOGY

SELECTED REFERENCES


THE CANADIAN SECURITY INTELLIGENCE SERVICE*

 

ISSUE DEFINITION

In July 1984, the Canadian Security Intelligence Service Act was proclaimed in force. It brought into existence a new civilian security intelligence service, and terminated the previous Security Service, which had functioned as part of the RCMP.

Passage of the Act was an attempt to bring the security intelligence function under more effective control and made Canada at that time one of the few western democracies to give its security intelligence service an explicit statutory charter. The Act provides a defined mandate for the operations of the agency; it interposes a system of judicially authorized warrants in the agency’s use of intrusive investigative techniques; and it establishes monitoring and review bodies, which purport to ensure that the agency does indeed act within the limits of its mandate.

BACKGROUND AND ANALYSIS

   A. The Origins and Development of the Security Intelligence Service

The origins of the CSIS Act may be found in the 1981 report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (the "McDonald Commission"). That Commission had been created in 1977 as a result of the revelation of a series of apparently illegal acts and practices carried out by the Security Service of the RCMP. The Commission was to determine the extent and prevalence of investigative practices or other activities "not authorized or provided for by law"; to report the facts of such practices; and to advise the government what action should be taken to deal with them; and to advise the government generally on necessary or desirable changes in "policies and procedures regarding national security."

The Security Service the McDonald Commission began to study in 1977, like many other Canadian institutions, developed gradually and incrementally. It was subsumed within the RCMP, and had no distinct statutory basis, deriving its authority from a power given to the Governor in Council in the Royal Canadian Mounted Police Act to assign certain functions to the Force. It was not until 1975 that the Service was given an explicit mandate, and even that mandate consisted only of a cabinet directive drafted in quite broad terms.

The Security Service had its genesis in certain duties assigned in 1864 by Sir John A. Macdonald to what was to become the Dominion Police Force. These duties included such things as providing security for government buildings, and providing information and intelligence on threats to Canada’s security, such as the Fenians. The North West Mounted Police assumed similar functions in the west.

The security intelligence role of the federal police gradually grew after Confederation through to the first World War, in response to labour unrest, anarchism, and the growth of communism. This role intensified between the world wars. But it was not until the end of the second World War that the security function was removed from the Criminal Investigation Branch of the RCMP, which had been formed in 1920.

The 1946 Gouzenko case led to a new awareness of the necessity for stricter security in government institutions, and for specific counter-espionage and counter-intelligence capabilities to deal with the new aggressive nature of East Bloc activities. In 1946 the Special Branch was created: its officer in charge reported to the Commissioner of the RCMP. The Branch had the specific responsibility of providing intelligence on espionage, subversion, and of ensuring that federal institutions were staffed by loyal and trustworthy persons. By 1956, the Special Branch had been raised to the directorate level within the RCMP, under the control of an Assistant Commissioner. Finally, in 1970, the Branch was renamed the Security Service under the control and management of a civilian (i.e. not a member of the RCMP) Director General (equivalent to a deputy commissioner) who reported to the Commissioner and to the Solicitor General. (In 1966 the RCMP had become the responsibility of the Solicitor General, when that position was raised to full ministerial status. Prior to that year, the force had been under the authority of the Minister of Justice.)

The 1970 reorganization was principally the result of the 1969 Report of the Royal Commission on Security (the "Mackenzie Commission"). That commission had been formed in 1966 following the widely publicized case of a security lapse in a federal institution. Its mandate was to look into security procedures in government, but it was also to inquire generally into the question of Canada’s national security. The principal recommendation of the Mackenzie Commission, based upon this last element of its mandate, was that a separate civilian security agency be formed. The commission found that it was not appropriate for a law enforcement body like the RCMP to be involved in security intelligence work. Such functions were found to be incompatible with the role of ordinary police; and the Special Branch was found to lack sufficient sophistication and powers of analysis, drawing as it did only on members of the force, to fully discharge the security intelligence role. The commission also recommended legislation to deal with the use by the security agency of intrusive investigative techniques, and an improved system of security screening, including an appeal process.

The government rejected "civilianization" of the Special Branch. It did, however, determine to make the security intelligence function "increasingly separate in structure and civilian in nature," in the words of the Prime Minister, within the RCMP. Hence the creation of the Security Service and the appointment of a civilian Director General. The government also pledged to bring more civilians into the Security Service and thereby expand its expertise and increase its flexibility. Another partial response to the Mackenzie Commission took place in 1974, when s. 16 of the Official Secrets Act was passed. That section allowed the Solicitor General to authorize the interception or seizure of communications if satisfied that conduct being investigated fell within a broad definition of activity inimical to national security - including espionage, sabotage, activities of foreign intelligence bodies and political violence.

   B. Abuses by the Security Service

The Security Service in the early 1970s was in a precarious position. Its members retained all the extraordinary powers accorded to peace officers. It also remained almost exclusively composed of RCMP members who had risen through the ranks. For the force, tight-knit, highly disciplined and loyal, strenuously resisted the infusion of civilian personnel. By the end of the decade there was not a single civilian in an officer-equivalent position in planning or operations of the Security Service.

Thus the service’s post-1970 personnel remained essentially similar. But organizationally they found themselves increasingly independent in matters of policy, budget, and operations. Service employees had the best of both worlds - police powers and a large degree of autonomy from the police command structure. This independence was reinforced by the government’s policy with respect to the RCMP - "non-interference." Politicians were not to be involved in controlling the police or directing their operations. This is a laudatory and effective principle when one is dealing only with the police who operate in a public context of checks and balances. It is not, however, ideal for a security intelligence agency which, perforce, acts in secrecy; and which, indeed, requires a degree of political control. Because the RCMP was both a police force and a security agency, abuses by the latter element were not immediately apparent.

It took the mere pressure of events to disturb the precarious position of the Security Service. The 1970 October Crisis stunned the government, which found itself with inadequate information as to the nature and scope of Quebec separatism. The government requested the RCMP to undertake a "proactive" strategy in this area - to try and get advance information as to the intentions and activities of nationalist organizations and, if possible, to prevent or "counter" disruptive acts. This the Security Service proceeded to do. It embarked on an extensive campaign of intelligence-gathering, infiltration, harassment and disruption directed at virtually all stripes of nationalist sentiment in Quebec. In many circumstances, the Service committed clearly illegal acts. Three of the most spectacular examples were: the burning down of a barn to prevent a meeting of militant nationalists and American radicals; a break-in at the offices of a Montreal left-wing news agency, followed by the theft and destruction of some of their files; and a break-in and theft of the membership lists of the Parti Québécois. Operations such as these had not, the McDonald Commission found, been ordered by the government. They were generated from within the Service in response to government directions to find out more about separatism. Quite aside from being illegal, these operations showed a lack of discrimination between true threats and legitimate dissent. None had any major effect on the organizations targeted, and none brought in intelligence of much importance.

Although the most spectacular acts of the Security Service were committed in Quebec, they certainly were not limited to that province. Throughout Canada, the Service engaged in a whole series of illegal or improper activities, particularly in relation to left-wing or radical groups. So-called "dirty tricks" were used against perceived threats to national security. In 1975, at the behest of the RCMP, a cabinet directive was issued, setting out the Service’s mandate. But this directive merely restated the status quo, permitting the Service to "discern, monitor, investigate, deter, prevent and counter" persons engaging in subversive or other activity inimical to national security.

The abuses of the Security Service were not limited to the 1970s, or to excesses in "countering" nationalist or radical threats. It was revealed by the McDonald Commission that some activities such as surreptitious entry, mail-opening, and the gaining of access to supposedly confidential information in the possession of the government, had gone on for many years, in relation to various aspects of national security - from espionage and counter-intelligence to subversion. In many cases, the Commission concluded, the investigative power used was needed but was not authorized by law. The Commission also found that it was not only the Security Service that had engaged in this "institutionalized" wrongdoing. The Criminal Investigation branch also had a long history of abuses in this area.

   C. The McDonald Commission's Recommendations

During the four years of its existence, the McDonald Commission conducted an exhaustive review of the Security Service. It catalogued the many illegalities and improprieties. It found, on the whole, that the supposed political masters of the Service were ignorant of its misdeeds. But this exoneration was also an inherent criticism in that the structure of control and accountability was so weak as to allow these things to happen. In the same way, these matters had come to light not by reason of review or audit but as a result of fortuitous disclosures by disgruntled former members of the Service and of pressure by the press and the opposition.

The report of the McDonald Commission was highly critical of the Security Service. While Canada’s basic security needs, particularly in dealing with espionage and the activities of foreign intelligence agencies, had been adequately dealt with, the Commission found that the Service lacked sophistication and analytical ability. In particular, there was an inability to distinguish subversion from dissent and a concomitant anti-left wing bias. The Service also lacked a precise mandate, effective political control and adequate review of its activities.

The principal recommendation of the report was that an entirely separate civilian security agency be formed. The reasons were much like those posited by the Mackenzie Commission. There was a need for a reorientation toward information-gathering and analysis rather than deterring or countering. New personnel were needed. Organizationally, the new agency would have to be politically accountable and subject to strict review. It would not be appropriate to impose this on the RCMP. Law enforcement and security work are incompatible, the report concluded.

The proposed new agency would have a statutory mandate, consisting of a definition of the threats to Canada’s security it would be permitted to investigate. The definition would have four elements: espionage and sabotage, foreign interference; political violence and terrorism; and revolutionary subversion - activities directed towards the destruction of the democratic system. The report also recommended that the agency be expressly forbidden from investigating lawful advocacy, protest or dissent. It would also not have the authority to "enforce" security.

The Commission also determined that, in order to be effective, the agency would have to have access to certain intrusive investigative techniques, such as electronic surveillance, surreptitious entry, mail-opening, and the ability to obtain confidential information. But these investigative methods would only be used pursuant to judicial warrant, which would only be issued where a court was satisfied that the matter fell within the mandate. Further, they would not be available against "subversive" threats.

The Commission’s agency would be under the management and control of a Director General, who would in turn be responsible to the Solicitor General. This minister would play a significant role in the operation of the agency. He would issue directives having to do with its functioning, and would have to authorize applications for warrants. To ensure compliance with the law, the Commission recommended substantial external review of the agency’s activities. First there would be the Advisory Committee on Security and Intelligence - an appointed three-member body which would submit operations to continuous review to ensure legality and propriety. It would also investigate complaints, and report to the Minister and Parliament. The second fundamental element of review would be a special joint parliamentary committee. The committee, appointed for the life of a Parliament, would be the ultimate control on the agency. In conjunction with the advisory committee it would, on behalf of Parliament, attempt to ensure that the agency observed its mandate.

   D. The Canadian Security Intelligence Service Act

Immediately after the August 1981 release of the McDonald Commission Report, the government indicated its acceptance of the most fundamental recommendation - the creation of a civilian security service. At the ministry of the Solicitor General, a special transitional group was established to translate the Commission’s recommendations into legislation.

In May 1983, during the first session of the 32nd Parliament, Bill C-157 was introduced in the House of Commons. That bill would have established the Canadian Security Intelligence Service (CSIS), based on the framework suggested by the McDonald Commission. The bill also made substantial and significant alterations and additions to that framework. Almost immediately, it became the object of critical comment. It was alleged to be an attack on civil liberties, giving the proposed service extremely wide powers, insulating the government from accountability, and failing to institute a precise mandate or a workable review system. So vehement was public opposition that the government decided against proceeding to second reading, and instead referred the subject matter of the bill to a special committee of the Senate. That committee held hearings throughout the summer of 1983, exposing a broad cross-section of public opinion on the bill. It issued its report in November 1983, recommending over 40 changes to the bill so that, in the words of the committee, there might be "a more appropriate balance between collective and individual security."

Following the report, Bill C-157 was allowed to die on the order paper. In the second session of the 32nd Parliament a new Bill, C-9, was introduced which incorporated virtually all the recommendations of the Senate Committee. Given first reading in January 1984, Bill C-9 was referred to the Justice Committee of the House of Commons in March, passed third reading in June, and was proclaimed in force in July and August 1984. The legislation, as passed, is virtually identical to the bill that was introduced in January.

The central provision of the legislation is the definition of "threats to the security of Canada" in s. 2, which comprises the basic limit on the activities of the CSIS. The four elements recommended by the McDonald Commission remain:

espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage;

foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person;

activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state; and

activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.

The definition also goes on to stipulate that lawful advocacy, protest or dissent is not within the scope of threats to security.

The basic function of the service is stated in s. 12 - to investigate, collect, analyze, and retain information and intelligence on security threats. Bill C-157 contained a further provision which expressly permitted the CSIS to "remain informed" about the current economic, social and political climate, from public sources of information. That section at first appeared in Bill C-9, but was eventually deleted as surplusage. By virtue of s. 13, the CSIS is to provide security assessments with respect to individuals to be employed in the government. Finally, by s. 16, the CSIS is given the role of assisting in the collection of "foreign intelligence," intelligence gained from investigation or surveillance of persons who are neither Canadian citizens nor permanent residents, with respect to defence or international affairs. As a result of the Senate committee’s recommendations, this function has been more sharply focused on non-Canadians, and may only be undertaken at the written request of the Minister of National Defence or the Minister of Foreign Affairs, with the consent of the Solicitor General.

Under Part II of the Act (ss. 21-28), the Federal Court may issue warrants to the service to carry out its functions under ss. 12 and 16. Such warrants allow the full range of investigative techniques to be used, with the exception of access to confidential census data maintained by Statistics Canada. The warrant process contains many safeguards and information requirements that were absent from Bill C-157, but which were added on the recommendation of the Senate Committee. Essentially, they parallel the Criminal Code requirements for warrants to allow electronic surveillance. A one-year limit is placed on warrants, with the exception of those obtained to investigate a paragraph (d) threat - subversion - which last only 60 days. This provision was added in the House Justice Committee, a partial recognition of the McDonald Commission recommendation that subversion not be the subject of intrusive investigative techniques at all. All warrants are renewable, on re-application to the court.

The Act assigns management and control of the CSIS to the Director, a Governor in Council appointee. The Solicitor General is given an active supervisory role. Originally, Bill C-157 had adopted a model borrowed from similar Australian legislation, which would have given the Director the final say on targeting and the release of information, and would not have given the Minister any operational role whatsoever; the ostensible purpose of these provisions was to ensure that the CSIS could not be used for partisan purposes. The provisions elicited considerable public outcry on the ground that they reduced the direct political responsibility of the Minister for the agency in order to avoid a fairly remote danger. They were roundly criticized by the Senate Committee. The Act provides that the Minister has an override and must approve all warrant applications. Another provision of Bill C-157 which aroused criticism was the defence given to agency employees for such reasonable acts done in pursuance of their duties as were "reasonably necessary." In the Act, this is replaced by s. 20, which gives employees the protection afforded by law to peace officers.

Two aspects of Bill C-157 which survived its revision into the Act had to do with control and review. The Act establishes the office of Inspector General (s. 30) and the Security Intelligence Review Committee (SIRC, s. 34). The former officer, appointed by the Governor in Council, is to monitor CSIS operations and to report to the Deputy Solicitor General and the SIRC on the legality and propriety of those operations. The SIRC is a committee to be composed of up to five Privy Councillors appointed by the Governor in Council after consultation by the Prime Minister with opposition leaders in the House of Commons. It is to conduct a review of CSIS operations and to report to the Minister and Parliament on them. It also has a variety of investigative duties. It deals with complaints about CSIS activities and acts as an appeal board with respect to security assessments and security-influenced decisions under the Citizenship and Immigration Acts.

A final aspect of the legislation, which was not dealt with by the McDonald Commission, is what was formerly Part IV of the Act (ss. 56-61), now known as the Security Offences Act. This Act addresses police and prosecutorial authority to deal with security-related offences. It gives the RCMP "primary responsibility" over the investigation of such offences, in pursuance of which they may enter into agreements with other police forces. The Security Offences Act also gives the federal Attorney General the power to prosecute security offences and, by fiat, to intervene in, and take over, provincial prosecutions of such offences. Despite considerable provincial criticism of the Act as an impingement on a traditional provincial area of jurisdiction, it remained essentially unchanged as it went through the legislative process.

   E. The Controversial Issues

The legislation which emerged from Parliament is far from being the product of consensus. Indeed, the committee proceedings and report stage dealing with Bill C-9 were extremely contentious. Both opposition parties vociferously opposed fundamental elements of it, giving voice to substantial public concern.

Perhaps the most fundamental concern had to do with the removal of the security function from the RCMP and the creation of a civilian service. Several provincial attorneys general, the Progressive Conservative party, some civil liberties groups, and, eventually the New Democratic Party, opposed the change. The principal contention was that, given a clear mandate and efficient review, the RCMP was still best equipped to discharge the security function, having discipline, a long and honourable tradition, an established system of contacts, and being virtually immune from penetration by foreign agencies. Others took the position that the defects in the legislation were so patent that it would be better to maintain the status quo.

There was also considerable opposition to the mandate given to the CSIS. This opposition had reference not only to the breadth of the definition, but to the whole idea of a security agency dealing with matters such as "subversion" or "foreign influenced activities." The Canadian Civil Liberties Association, for example, took the position that there was no need for more than a relatively small agency to deal with the distinct threats of espionage or sabotage from foreign nations. Regular law enforcement could deal with the other elements of threat, when the criminal law was contravened.

The scope of the threats definition is also quite controversial. Some contend that it is so broadly drafted as to bring within its scope a variety of acts having nothing to do with true security. The government took the position that the definition must be read in the context of those provisions which protect lawful dissent and which limit the agency to what is "strictly necessary" and in the context of the new system of monitoring and review. Given this context, it is said, the definition is reasonable. The "foreign intelligence" function of the agency (s. 16) is also quite contentious. Many find it inherently unreasonable to submit foreign nationals to surveillance if they do not constitute a security threat, but can merely provide Canada with useful information having to do with defence or international affairs. Another area of concern is the scope of the warrant system, which gives the CSIS access to virtually any investigative technique from surreptitious entry to access to doctor-patient confidences.

Most of the remainder of the Act is not particularly contentious, save for two areas having to do with review of the agency. The first has to do with the access to information by the Inspector General and the SIRC. Both bodies are given access to all information in the possession of the CSIS except cabinet documents. These exceptions (see ss. 31(2) and 39(3)) first appeared in Bill C-157 and have been almost universally condemned, critics taking the position that the review bodies should have access to all documents held by the agency in order to fully discharge their important functions. The Senate Committee recommended deletion of the exceptions. In the House Justice Committee, some government members joined the opposition to vote to remove them. They were, however, restored at report stage in the House. The government took the position that the cabinet system requires utmost confidentiality.

The other area is direct parliamentary oversight of the CSIS. Recommended by McDonald, it was absent from Bill C-157. The Senate committee had also rejected it as impractical, duplicative of the SIRC, and subject to weaknesses in preserving secrecy. Both opposition parties supported the idea of a special parliamentary committee, with access to agency information, in order that Parliament could be assured that the CSIS was acting within its mandate. They were not confident that Parliament would get a full picture of agency operations from the SIRC, and pointed to the examples of the Federal Republic of Germany and the United States, to show that such a committee could be workable and successful. The government was firm on this matter, however, and refused to add direct parliamentary oversight.

   F. 1984 to Present

On 17 August 1987, the Federal Court of Appeal, by a two-to-one majority, held that the warrant-granting provision of the Canadian Security Intelligence Service Act (s. 21) is not in violation of the Canadian Charter of Rights and Freedoms. In this case, an individual (Atwal), accused of involvement in an attack in B.C. on a Punjabi Cabinet Minister, applied for access to a sworn affidavit in support of a warrant application in Federal Court. Heald J. on 30 April 1987 upheld s. 21 of the CSIS Act under the Charter and denied access to the affidavit. On appeal, Mahoney J. and MacGuigan J. not only upheld s. 21 under the Charter, but reversed Heald J. and allowed access to the affidavit with the names of CSIS agents and informants deleted.

On 11 September 1987, Mr. T.D. Finn resigned as Director of CSIS and was replaced by J. Reid Morden, former Assistant Secretary to the Cabinet for Foreign and Defence Policy. Mr. Finn resigned when it was revealed in Federal Court that day that the affidavits behind the warrant in the Atwal case contained inaccuracies and irregularities.

The Solicitor General on 30 November 1987 released the Report of a three-member independent advisory team chaired by Gordon Osbaldeston, and announced his acceptance and implementation of its recommendations. The Report was critical of CSIS and recommended changes in relation to all facets of the service. More particularly, criticisms and recommendations were made about the excessive internal compartmentalization of CSIS operations, inadequate reliance on open sources, under-developed analytical capacity, lack of clear policy directives on targeting, the use of human sources and of intrusive investigative techniques, and inadequate training programs. The Report urged the re-opening of the CSIS staff college and the elimination of the Counter Subversion Branch.

On 29 March 1988, the Solicitor General released the SIRC’s report to him of 25 March 1988, on CSIS’s use of its investigative powers with respect to the labour movement. The Committee concluded that neither Marc André Boivin, one of CSIS’s human sources, nor CSIS had targeted union members or unions for their labour activities as such. The report was critical of CSIS for retaining Mr. Boivin’s services after they had ceased to be useful, for not having in place a policy to determine when the use of human sources was reasonably necessary, and for maintaining, adding to and utilizing R.C.M.P. Security Service files in a way that may have been beyond the agency’s mandate as set out in the CSIS Act. The report indicated the SIRC’S satisfaction that both the Solicitor General and the Director of CSIS had moved expeditiously to deal with these difficulties.

In the Thomson case, an individual (Thomson) had been refused a position with the Department of Agriculture because of an unfavourable security assessment by CSIS. He appealed this decision to SIRC which conducted a hearing and recommended that he be given a positive security clearance. The Deputy Minister of Agriculture rejected this recommendation. On 7 March 1988, the Federal Court of Appeal ruled that because of the statutory structure of the CSIS Act, the SIRC’s recommendations are binding on government. It also ruled that, because the Deputy Minister of Agriculture was exercising "administrative" powers, the Federal Court of Appeal did not have jurisdiction to make a binding ruling in this matter. On 17 June 1988, Dubé J. of the Federal Court, Trial Division, expressed his respect for the reasoning in the Federal Court of Appeal’s obiter opinion, but declined to follow it. He held that the recommendations made by the SIRC in security clearance cases are not "decisions" and hence not binding on government. Dubé J.’s ruling was appealed to the Federal Court of Appeal. On 17 May 1990, a differently constituted bench of the Federal Court of Appeal overruled Dubé J.’s decision and said he was bound by the initial appellate ruling. The Thomson decision was followed by Joyal J. on 4 October 1990 in the Kwan Lihuen case, which involved the removal of a security clearance from a Chinese language translator employed by CSIS. The Supreme Court of Canada on 25 January 1991 granted leave to appeal in the Thomson case. In reasons handed down in the Thomson case on 13 February 1992, the Supreme Court of Canada ruled that the SIRC’s recommendations in security clearance cases are not binding on government.

On 26 January 1989, the Federal Court of Appeal rendered its decision in the Russell case. In this case, an individual (Russell) wanted to know if he had been the subject of investigation by CSIS. The SIRC advised Russell that CSIS had done nothing improper or illegal. In a decision rendered from the Bench, Pratte J.A. ruled that the March 1988 letter from the SIRC to Russell was merely a "report of findings," not a "decision," and hence not subject to judicial review.

On 9 March 1989, Stephen Ratkai, who had pleaded guilty to charges under the Official Secrets Act that he had engaged in espionage activities on behalf of the Soviet Union, was sentenced to nine years’ imprisonment.

On 23 March 1989, Marc André Boivin instituted litigation in the Federal Court against CSIS, the SIRC and the Solicitor General in which he claimed damages in the amount of half a million dollars. He sued CSIS for having revealed his activities on its behalf to the Sûreté du Québec, and the SIRC for having reported publicly on his activities without giving him an adequate opportunity to present his side of the events.

On 15 May 1989, the Canadian Civil Liberties Association initiated litigation in the Ontario Court (General Division) in which it requested a judicial declaration that certain provisions of the CSIS Act were in violation of the Charter of Rights and hence of no force or effect. Mr. Justice Potts of the Ontario Court (General Division) rendered a judgment on 16 August 1990 in which he concluded that the Canadian Civil Liberties Association had legal standing to continue its litigation. In reasons for judgment released on 25 March 1992, Mr. Justice Potts ruled that the CSIS Act was not in violation of the Charter of Rights and Freedoms. The Ontario Court of Appeal, by a 2 to 1 majority, dismissed the Canadian Civil Liberties Association appeal in a 9 July 1998 decision. The Supreme Court of Canada refused to grant leave to appeal in this case.

In the Chiarelli case, the Federal Court of Appeal decided on 23 February 1990 that the provision of the CSIS Act that allowed the SIRC to exclude complainants and their counsel from certain parts of its hearings was in violation of the Charter of Rights. The Supreme Court of Canada granted leave to appeal in this case. On 26 March 1992, the Supreme Court of Canada ruled that the provision of the CSIS Act allowing the SIRC to exclude complainants and their counsel from certain parts of hearings was not in violation of the Charter.

On 14 August 1990, the SIRC issued a report and recommendations involving the Canadian Armed Forces and Ms. M.D. Douglas, a former member. In this report, the SIRC was critical of the Forces for the way in which an investigation of Ms. Douglas’s sexual orientation had been carried out and her security clearance withdrawn. Concluding that Ms. Douglas was not a security risk, it recommended that her security clearance be restored and that she be reinstated in her former employment. This decision was appealed to the Federal Court of Appeal.

PARLIAMENTARY ACTION

A parliamentary role in the oversight of CSIS operations is provided for in s. 53 of the Act, which stipulates that the Solicitor General must lay the annual report of the SIRC before Parliament. The Standing Orders of the House of Commons deem any report required by law to be tabled in Parliament to be permanently referred to a committee of the House. For SIRC reports, this is the Standing Committee on Justice and Human Rights.

Another source of parliamentary input into the assessment of the legislation are s. 56 of the CSIS Act and s. 7 of the Security Offences Act, which were recommended by the Senate Committee. These sections provided that a committee of the House or of the House and the Senate was to conduct a review of the operation of the Acts within five years of their coming into force. That committee was to make a report, which would include "a statement of any changes" it recommended. The House of Commons set up a Special Committee on 27 June 1989 to conduct a review of the CSIS Act and the Security Offences Act. That Committee reported its findings and 117 recommendations on 24 September 1990.

The Committee’s report, entitled In Flux but not in Crisis, generally concluded that the Canadian security and intelligence system was sound and that any reforms should be based on the continuation and extension of already-established institutions. Its recommendations dealt with the definition of mandates, labour relations and human resources, the review roles of the Inspector General and the SIRC, the complaints roles of the SIRC and the RCMP Public Complaints Commission, and the establishment of a parliamentary sub-committee to monitor and review the security and intelligence community. The Committee called upon the government to respond to its report and recommendations within 150 days.

The government tabled its response, entitled On Course: National Security for the 1990’s, on 25 February 1991. The government set out its belief that legislative changes in the CSIS Act and the Security Offences Act were not needed. It further asserted that it was unwilling at that time to contemplate structural changes to the national security model in place. The response did undertake that, starting in 1992, the Solicitor General would at the time of tabling of Main Estimates also provide Parliament with a statement of national security issues facing Canada. This statement was to be accompanied by a public Annual Report, by the Director of CSIS, which would discuss the "threat environment."  The government accepted the Committee recommendation that there be another parliamentary review of the CSIS Act and the Security Offences Act, and undertook to arrange for it to begin in 1998.

On 26 February 1991, a debate was held on an Opposition motion that the House of Commons concur in the Committee’s report "In Flux but not in Crisis." The House adjourned that day without coming to a vote.

The House of Commons Standing Committee on Justice and Solicitor General, pursuant to a recommendation made in "In Flux but not in Crisis," established on 13 June 1991 a permanent Sub-Committee on National Security. The Sub-Committee held its first meeting on 18 June 1991.

In fulfillment of a commitment made by the government in "On Course: National Security for the 1990’s," the Solicitor General made his first Annual Statement on National Security and tabled the CSIS Director’s first Public Report in the House of Commons on 19 March 1992.

The Solicitor General on 11 April 1994 made his Annual Statement on National Security and at the same time tabled in the House of Commons the CSIS Director’s Public Report 1993. Two days later, on 13 April 1994, the Solicitor General, during an appearance on Main Estimates before the House of Commons Standing Committee on Justice and Legal Affairs, provided for the first time a three-figure breakdown of CSIS’s budget. Under the 1994-95 Main Estimates, CSIS was to be allocated $206,834,000, to be made up of $115,454,000 for personnel, $17,196,000 for construction or land acquisition, and $74,184,000 for other subsidies and payments. These budgetary details were made public for the first time.

The House of Commons Standing Committee on Justice and Legal Affairs on 3 May 1994 adopted a motion re-establishing a Sub-Committee on National Security.

On 14 August 1994, there were public allegations that a CSIS human source, Grant Bristow, had played a prominent role in the establishment and activities of the Heritage Front. That day, the SIRC undertook to investigate these and related public allegations. Because of subsequent public developments, the House of Commons Sub-Committee on National Security on 29 August 1994 announced that it would be investigating these events.

The SIRC Report to the Solicitor General on CSIS’s involvement in the Heritage Front was released by the Minister on 15 December 1994. The report confirmed that CSIS had had a human source within the Heritage Front who had been properly targeted and had provided valuable security intelligence. It concluded that the source, whom it did not identify, had played a support, rather than a leadership, role in the founding and running of the Heritage Front. It also concluded, after lengthy consideration, that many of the public allegations were either exaggerated or untrue, though it expressed some concern about the "borderline" activities of the source. The SIRC recommended that more complete policy guidance be developed for the placement and control of CSIS human sources.

On 16 December 1994, members of SIRC appeared before the House of Commons Sub-Committee on National Security to answer questions about the report on CSIS and the Heritage Front.

On 28 March 1995, the Solicitor General made his Annual Statement on National Security and at the same time tabled in the House of Commons the CSIS Director’s Public Report 1994. For the first time, the Public Report contained a Program Outlook covering the period until the end of the 1997-98 fiscal year. This document projected that CSIS’s budget would decline from $207 million to $159 million and its personnel component from 2,366 Full Time Equivalents (FTEs) to 2,021.

The House of Commons Sub-Committee on National Security tabled its report on document and personnel security on 4 October 1995. Its five recommendations proposed that the Government Security Policy be strengthened and that it be extended to Ministers’ offices. In its 28 February 1996 response to the report, the Government accepted the thrust of the Sub-Committee’s recommendations.

On 19 June 1996, the House of Commons Sub-Committee on National Security tabled its Report on the "Heritage Front Affair." The Sub-Committee released a majority report, a joint dissenting opinion, and two dissenting opinions, based on its review of the December 1994 SIRC Report on these matters

On 1 August 1996, Heald J. of the Federal Court ruled in Zundel that there was well-founded apprehension of bias in relation to the SIRC’s consideration of a citizenship case of a person on whom it had commented adversely in its Heritage Front Affair Report. This decision was appealed by the government to the Federal Court of Appeal. In the meantime, Bill C-84, amending the Citizenship Act and the Immigration Act to provide an alternative process in situations analogous to that in Zundel, was passed by the House of Commons and the Senate, and received Royal Assent on 25 April 1997. The Federal Court of Appeal on 27 November 1997 reversed Heald J’s decision in Zundel. On 30 April 1998, the Supreme Court of Canada denied leave to appeal in the case.

CHRONOLOGY

1946 - With the increase of security functions assigned to the RCMP, personnel working in that area were for the first time organizationally separated from the Criminal Investigations Branch into the Special Branch.

1956 - The Special Branch was elevated to the Directorate level within the RCMP, under the command of an Assistant Commissioner.

1969 - The Royal Commission on Security recommended creation of a civilian security agency. The government decided against this, but promised to make the Special Branch more separate and increase the civilian staff.

1970 - The Special Branch became the Security Service, under the direction of a civilian Director General, Mr. John Starnes.

October 1970 - James Cross was kidnapped; Pierre Laporte was kidnapped and murdered. The War Measures Act was proclaimed.

1971-74 - Particularly, but not exclusively, in Quebec, the Security Service undertook a series of acts, many apparently illegal, to neutralize radical and separatist groups.

27 March 1975 - The federal cabinet issued a directive governing the operations of the Security Service. It remained secret until 1978.

30 March 1976 - Cpl. R. Samson, on trial for an unrelated incident, revealed his participation in Operation Bricole in 1972 (a break-in and theft of files).

June 1977 - Former Security Service staff-sergeant Donald McCleery revealed to officials from the Department of Justice the details of other operations, including Operation Ham (the break-in and theft of PQ membership lists).

6 July 1977 - Solicitor General Fox announced the appointment of Mr. Justice D.C. McDonald to head a commission of inquiry into the allegations of RCMP wrongdoing.

June 1981 - Following the report of its own inquiry, the government of Quebec laid charges against 17 current or former RCMP members.

25 August 1981 - The final report of the McDonald Commission was made public.

18 May 1983 - Bill C-157 was given first reading in the House of Commons during the 1st Session of the 32nd Parliament.

29 June 1983 - The subject matter of Bill C-157 was referred to a special committee of the Senate, which in its November report recommended substantial amendment of the bill.

18 January 1984 - Bill C-9 was given first reading in the House of Commons during the 2nd Session of the 32nd Parliament. The bill incorporated most of the changes recommended by the Senate Committee.

21 June 1984 - After three months in committee, Bill C-9 was given third reading and passed by the House. Shortly thereafter it was passed by the Senate.

16 July 1984 - All but Part II of the CSIS Act was proclaimed in force.

31 August 1984 - Part II of the CSIS Act, which deals with warrants, was proclaimed in force.

29 November 1984 - The first members of the SIRC were appointed, under the chairmanship of Ronald Atkey, a former Conservative cabinet minister.

15 February 1985 - Richard Gosse, former deputy attorney general of Saskatchewan, was appointed first Inspector General under the CSIS Act.

22 July 1987 - The Solicitor General announced the establishment of a three-member independent advisory team to report by 30 October 1987 on the implementation of the SIRC’s recommendations concerning counter-subversion and civilianization.

30 July 1987 - The Senate Special Committee on Terrorism and the Public Safety released its Report.

11 September 1987 - T.D. Finn resigned as first Director of CSIS and was replaced by J. Reid Morden.

30 November 1987 - The Solicitor General released the independent advisory team’s report and announced his acceptance of its recommendations.

29 March 1988 - The SIRC issued its Special Report on CSIS activities in relation to the labour movement and on the actions of Marc André Boivin.

27 June 1989 - The House of Commons established a Special Committee to conduct the five-year review of the provisions and operation of the CSIS Act and the Security Offences Act. This Committee was to report by 16 July 1990.

28 June 1989 - The Special Committee of the Senate on Terrorism and Public Safety tabled its second and final report.

24 September 1990 - The House of Commons Special Committee on the Review of the CSIS Act and the Security Offences Act tabled its report entitled In Flux but not in Crisis."

25 February 1991 - The government tabled "On Course: National Security for the 1990’s," its response to the Report of the House of Commons Special Committee on the Review of the CSIS Act and the Security Offences Act.

26 February 1991 - A debate on a concurrence motion in the Report of the Special Committee on the Review of the CSIS Act and the Security Offences Act was held in the House of Commons.

13 June 1991 - The House of Commons Standing Committee on Justice and Solicitor General established a Sub-Committee on National Security.

18 June 1991 - The Sub-Committee on National Security met for the first time.

3 May 1994 - The House of Commons Standing Committee on Justice and Legal Affairs adopted a motion re-establishing its Sub-Committee on National Security.

14-29 August 1994 - A number of public allegations were made about the role of a CSIS human source, Grant Bristow, in the establishment and activities of the Heritage Front. The SIRC decided to investigate public allegations concerning CSIS and the Heritage Front.

29 August 1994 - The House of Commons Sub-Committee on National Security announced an investigation into public allegations of a CSIS-Heritage Front link.

15 December 1994 - The SIRC Report on CSIS’s activities within the Heritage Front was made public by the Solicitor General.

4 October 1995 - The House of Commons Sub-Committee on National Security tabled its Report Document and Personnel Security.

19 June 1996 - The House of Commons Sub-Committee on National Security tabled its Report on the Heritage Front Affair.

1 August 1996 - Heald J. of the Federal Court rendered his judgment in Zundel.

25 April 1997 - Bill C-84 received Royal Assent.

3 October 1997 - McGillis J. of the Federal Court rendered a judgment critical of attempts by CSIS to include "visitors clauses" in warrants for security intelligence investigations.

27 November 1997 - The Federal Court of Appeal reversed Heald J’s decision in Zundel. The Supreme Court of Canada later denied leave to appeal.

26 March 1998 - The Senate established a Special Committee on Security and Intelligence which was to report in the fall of 1998.

9 July 1998 - The Ontario Court of Appeal, by a 2-1 majority, dismissed the appeal in the Canadian Civil Liberties Association case. The Supreme Court of Canada later denied leave to appeal.

January 1999 - The Senate Special Committee on Security and Intelligence tabled its report.

November 1999 - Media accounts contained reports of theft and mishandling of confidential CSIS documents.

16 December 1999 - The Solicitor General made the Annual Statement on National Security in the House of Commons and responded to the Report of the Senate Special Committee on Security and Intelligence.

SELECTED REFERENCES

Atkey, Ronald G., "Reconciling Freedom of Expression and National Security." (1991) 41 University of Toronto Law Journal 38-59.

Canada, House of Commons, Special Committee on the Review of the CSIS Act and the Security Offenders Act. Report - In Flux but Not in Crisis. Supply and Services Canada, Ottawa, 1990.

Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Sub-Committee on National Security. Document and Personnel Security. Tenth Report of the Standing Committee. Tabled on 4 October 1996.

Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Sub-Committee on National Security. The Heritage Front Affair: Our View. First Report of the Standing Committee. Tabled on 19 June 1996.

Canada.  Report of the Royal Commission on Security. Queen’s Printer, Ottawa, 1969.

Canada, Senate Special Committee. Delicate Balance: A Security Intelligence Service in a Democratic Society. Supply and Services Canada, Ottawa, November 1983.

Canada, Senate Special Committee on Terrorism and the Public Safety.  Report. Supply and Services Canada, Ottawa, 1987.

Canada, Senate Special Committee on Terrorism and the Public Safety.  Second and Final Report. Supply and Services Canada, Ottawa, 1989.

Canada, Senate Special Committee on Security and Intelligence. Report. Supply and Services Canada, Ottawa, 1999.

Canada, Solicitor General. On Course: National Security for the 1990’s. The government’s response to the Report of the House of Commons Special Committee on the Review of the CSIS Act and the Security Offenders Act. Supply and Services Canada, Ottawa, February 1991.

Canada, Solicitor General. People and Process in Transition: Report to the Solicitor General by the Independent Advisory Team on The Canadian Security Intelligence Service. Communications Group, Ministry Secretariat, Supply and Services Canada, Ottawa, October 1987.

Canadian Security Intelligence Service. Public Reports (1991 to 1998). Supply and Services Canada, Ottawa.

Cleroux, Richard.  Official Secrets: The Story Behind the Canadian Security Intelligence Service.  McGraw-Hill Ryerson, Toronto, 1990.

Commission of Inquiry Concerning Certain Activities of the RCMP.  Second Report - Freedom and Security Under the Law.  Ottawa, 1981.

Eddy, Troy Andrew. The Politics of Intelligence: A Study of Factors Influencing Canada’s Security and Intelligence Network: Requirements versus Capabilities. M.A. Thesis, Dalhousie University, Halifax, Nova Scotia, August 1991.

Farson, A. Stuart. "Accountable and Prepared? Reorganizing Canada’s Intelligence Community for the 21st Century." Canadian Foreign Policy, Vol. 1, No. 3, 1993, p. 43-66.

Farson, A. Stuart. David Stafford and Wesley K. Wark, (eds.). Security and Intelligence in a Changing World: New Perspectives for the 1990’s. Frank Cass & Co. Ltd., London, England, 1991.

Farson, A. Stuart. "In Crisis and In Flux?: Politics, Parliament and Canada’s Intelligence Policy." Journal of Conflict Studies, Vol. 16, No. 1, Spring 1996.

Farson, A. Stuart. "Is Canadian Intelligence Being Re-Invented?" Canadian Foreign Policy, Vol. 6, No. 2, 1999, p. 49-83.

Finn, T. D’Arcy. "Does Canada Need a Foreign Intelligence Service?" Canadian Foreign Policy, Vol. 1, No. 3, 1993, p. 149-162.

Franks, C.E.S. (ed.).  Dissent and the State.  Oxford University Press, Toronto, 1989.

Granatstein, J.L. and David Stafford.  Spy Wars: Espionage and Canada from Gouzenko to Glasnost. Key Porter Books, Toronto, 1990.

Hanks, Peter and John D. McCamus (eds.).  National Security: Surveillance and Accountability in a Democratic Society.  Les éditions Yvon Blais Inc., Cowansville, Quebec, 1989.

Hensler, Alistair. "Canadian Intelligence: An Insider’s Perspective." Canadian Foreign Policy, Vol. 6, No. 3, 1999, p. 127-132.

Hensler, Alistair. "Creating a Canadian Foreign Intelligence Service." Canadian Foreign Policy, Vol. 3, No. 3, 15.

Kilgour, David. Betrayal: The Spy Canada Abandoned. Prentice-Hall Canada Inc., Scarborough, Ontario, 1994.

Krieber, Janine. "La démocratie du secret: le contrôle des activités de renseignement au Canada." 13 Politique, 1988, p. 37-62.

Leigh, Ian. "Secret Proceedings in Canada." (1996) Osgoode Hall Law Journal, Vol. 34, No. 1. 113-173.

Lester, Normand. Enquête sur les services secrets. Les Éditions de L’homme, Montreal, 1998.

Potter, Evan, (Ed.). Economic Intelligence and National Security. Carleton University Press, Ottawa, 1998.

Prados, Alfred B. and Richard A. Best Jr. Intelligence Oversight in Selected Democracies. Congressional Research Service, Library of Congress, Washington D.C., 21 September 1990.

Rosen, Philip. The Communications Security Establishment: Canada’s Most Secret Intelligence Agency. BP-343E, Research Branch, Library of Parliament, Ottawa, September 1993.

Saltstone, Scot P. "Some Consequences of the Failure to Define the Phrase "‘National Security’" Conflict Quarterly, Vol. 11, 1991, p. 36-54.

Security Intelligence Review Committee.  Annual Reports (1985-86 to 1998-99). Supply and Services Canada, Ottawa.

Security Intelligence Review Committee. The Heritage Front Affair: Report to the Solicitor General of Canada. Mimeo, dated 9 December 1994, released by the Solicitor General on 15 December 1994.

Security Intelligence Review Committee. Section 54 Report to the Solicitor General of Canada on CSIS’ Use of its Investigative Powers with Respect to the Labour Movement. Mimeo dated 25 March 1988, released by the Solicitor General on 29 March 1988.

Shulsky, Abram N. Silent Warfare: Understanding the World of Intelligence. Brassey’s (U.S.) Ltd., McLean, Virginia, 1991.

Starnes, John. Closely Guarded: A Life in Canadian Security and Intelligence. University of Toronto Press, Toronto, 1998.

Weller, Geoffrey R. "Comparing Western Inspectors General of Intelligence and Security." International Journal of Intelligence and Counterintelligence, 1996-97, Vol. 9, No. 4, p. 383-406.

Whitaker, Reg and Gary Marcuse. Cold War Canada: The Making of a National Insecurity State 1945-57. University of Toronto Press, Toronto, 1994.

Whitaker, Reg. "Security and Intelligence in a Cold Climate," in: How Ottawa Spends - 1996-1997, Carleton University Press, Ottawa, 1996, pp. 409-441.


The original version of this Current Issue Review was published in September 1984; the paper has regularly been updated since that time.


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