OLT: Enhanced Oversight and Review

May 9, 2016

They’re the issues that won’t go away. First raised by FrontLine Security in 2011, following the 2010 Air India report recommendations, the issues of improving national security operational oversight and after-the-fact reviews resurfaced during the C-51 debate and the 2015 election. The new Liberal government campaigned on changing national security oversight and review, and this was further emphasized in the mandate letter provided to Public Safety Minister Ralph Goodale in November 2015 which included a direction to:

“Assist the Leader of the Government in the House of Commons in the creation of a statutory committee of Parliamentarians with special access to classified information to review government departments and agencies with national security responsibilities.”

While the Minister’s mandate letter refers only to a specially constituted Parliamentary Committee, it is necessary to appreciate that national security ‘review’ can also be accomplished through other means. Minor amendments to the enacted provisions of C-51 could, for example, include mandatory annual reporting to the Privacy Commissioner by designated Departments or Agencies of information sharing done pursuant to the new Security of Canada Information Sharing Act. This would supplement the already existing power of the Privacy Commissioner for complaint-based and self-initiated investigations, which includes multi-agency examination.

Enhanced oversight can also be achieved through full use of the existing review procedures under the CSIS Act whereby the Security Intelligence Review Committee (SIRC) can investigate and review the activities of CSIS in defined scenarios. It should also be noted that SIRC does appear to have express statutory authority under the CSIS Act in defined circumstances to summon and question representatives from other agencies or Departments beyond CSIS and, with some restriction, to seek relevant information from them (see sections 6(4); 38(c); 40(2); 41; 59).

It is also possible to amend the CSIS Act to expand the multiagency investigative mandate of SIRC so as to include the new judicially-authorized operational activities created by C-51, and to ensure that its investigative and review mandate includes all agencies interacting with CSIS on national security matters.

There has been no signal from the new Government as to what it intends to consider in these areas generally, or in relation to C-51 specifically, but all of these options are available and would increase independent review in national security operations.

The departure of Stephen Harper from the Prime Minister’s office also seems to have largely eliminated any real opposition to the idea of creating a joint House-Senate Special Committee with a national security review mandate. To be effective and not just window dressing, such a committee will need a mandate that includes full Departmental and Agency review, including access to relevant information.

The Committee could examine policy issues to assess compliance and after-the-fact case specific incidents, which are often the most revealing, about performance and non-performance and what remedial measures are necessary. Case reviews permit specific questions about actual conduct, or inaction, which generally translates into specific explanations rather than the usual theoretical responses. The importance of this cannot be overstated as accountability is a proven incentive to performance and productivity.

This kind of targeted review also can serve as a vehicle to effectively identify legislative, policy or funding obstacles to desired operational abilities. Having a joint Parliamentary Committee reporting on such problems is also a likely accelerator to getting them fixed expeditiously, which is no small matter.

The other area that merits attention is the need to ensure independent oversight and coordination for inter-agency operational entities like the RCMP-led Integrated National Security Enforcement Teams (INSET) and for subject areas like cyber security that involve multiple Departments and Agencies.

The independent ‘oversight’ contemplated here is different than the after-the-fact review described above, as it involves an ongoing, non-operational role in the inter-agency operational bodies and multi Department/Agency responsibilities.

It must be stressed that the purpose of this oversight is not to add another service delivery player but rather to create a mechanism to ensure that the responsibilities and intended co-operative practices are actually being achieved.

This kind of independent oversight was part of the 2006 Conservative election platform and a recommendation from Justice Major in his 2010 Air India Report. Despite this, then Public Safety Minister Vic Toews declined to act to implement this reform.

The issue has become even more pressing with the passage of Bill C-51 and the expanded operational mandate provided to CSIS, which includes international operations, entering into agreements with local police agencies, and requesting ‘assistance’ from other agencies to carry out judicially authorized activities. Added to that is the reality of returning jihadis, and a welcome prioritization of radicalization prevention and deradicalization, all of which means increased community interaction and increased local police involvement.

In short, things just got more complicated, and so, having a clear set of inter-agency protocols with an independent compliance assurance mechanism is a good idea. Such an entity could be created within the Privy Council Office (PCO) with a clear mandate and a reporting link directly to the National Security Advisor’s office – which is also part of the PCO. Once again, this kind of accountability enhancement would also be a natural forum for identification and potential resolution of inter-agency ‘difficulties’, especially when the failure to resolve issues results in reporting ‘up’ rather than toleration of the status quo.

These are important issues that require informed and effective action. Hopefully, the new Government will differ from its predecessor and choose a course of action that delivers enhanced operational efficiency and improved independent review. Both are possible and both serve the public interest of Canadians.

Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer to the Canadian Police Association, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada.