Super agency proposed to oversee national security

By Justin Ling June 29, 201729 June 2017

Canada’s national security regime will soon see the largest overhaul in its review, management, and approval structure since the McDonald Commission recommended splitting the RCMP’s intelligence branch off into a new agency: CSIS.

The Trudeau government legislation, C-59, addresses a number of facets in Canada’s national security infrastructure — CBA National wrote about its plans for CSIS’s disruption powers last week — but the changes to how Canada’s national security framework is managed and monitored is almost certainly the most far-reaching.

Under the proposed legislation, Canada’s national security agencies will be under the purview of the National Security and Intelligence Review Agency, or NSIRA. That body essentially looks like the ‘Super SIRC,’ the proposed agency that would expand the scope of the CSIS review body to include a variety of other agencies.

The NSIRA would be responsible for overseeing CSIS, the Communications Security Establishment, the national securities responsibilities of the RCMP, and any other agency conducting national security activities or intelligence sharing. A list provided by Public Safety Minister Ralph Goodale’s office reports that the NSIRA could review every agency from the Canadian Armed Forces to Global Affairs Canada, Health Canada, or the Canadian Food Inspection Agency.

The NSIRA would replace the existing review bodies for CSIS and CSE, and would assume the role of the RCMP civilian review and complaints body with respect to the force’s national security work.

The legislation gives NSIRA the right to compel information from any agency it investigates, even if that information is otherwise protected under solicitor-client privilege.

It is not permitted, however, to review documents deemed to be cabinet confidences.

Perhaps one of the more welcome albeit understated changes will be the new requirements for annual reports from the NSIRA. The law maintains that the agency must submit a report to the Prime Minister, which would be tabled in Parliament, regarding the overall activities of the intelligence and security agencies. That is not dissimilar to what the agencies already do. But the legislation maintains that the NSIRA must also prepare an annual report on the use of the Security of Canada Information Disclosure Act, which governs intelligence and information-sharing across the government. That system is one that still remains poorly understood and lightly overseen. The bill also gives the committee power to table special reports on any matter, submitted to any minister, throughout the year.

Alongside the NSIRA is an all-party Parliamentary oversight committee, which was enshrined into law — despite criticism — this month.

Many groups recommended an array of amendments, mostly around the idea that cabinet could refuse to disclose documents to that committee with little justification. Despite an attempt in the Senate, the bill remained largely unchanged.

The other big piece to C-59 is the brand new role of Intelligence Commissioner. Lead by a former judge, the proactive approval body – apart from both CSIS and CSE – would review activities before they occur.

The commissioner could review warrant applications — including for disruption activities undertaken by CSIS — as well as ministerial authorizations for CSIS and CSE to carry out intelligence collection and retention. Their job will be to sign-off on the general work and operations of the agencies, instead of specific operations.

That level of authorization and approval, which exists beyond the existing chain-of-command, is styled after the previous CSE Commissioner, but exists with significantly more power.

That’s not to say the new oversight regime is perfect.

As Kent Roach and Craig Forcese — professors of law at the universities of Toronto and Ottawa, respectively — noted in Policy Options, the commissioner’s watchful eyes aren’t called upon in every case.

The pair ask: “When does CSE need to obtain a ministerial authorization, that is subsequently vetted by the commissioner?” The law states that the establishment must go to the commissioner when its work will contravene any Act of Parliament — “that is the only legal trigger we can find actually embedded in the Act,” they note.

“We fear this is ambiguous.”

They figure that this may be a “bug in the bill” that could be remedied, and not a feature.

The pair give NSIRA high marks: “The new review body is welcome, and will be state-of-the-art in terms of the law. But much will depend on the resourcing of the agency and those who are appointed to it.”

The Canadian Civil Liberties Association echoed Forcese and Roach, writing that “enhanced and integrated accountability was sorely needed.” The BC Civil Liberties Association also welcomed the new review, although with the caveat that “there are many questions that will need to be answered, particularly with regards to the powers and mandate of the Intelligence Commissioner.”

CBA National will continue coverage of C-59 throughout the summer.

Justin Ling is a regular contributor to nationalmagazine.ca

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