choicesVol. 15, no. 9, September 2009 ISSN 0711-0677 www.irpp.org

Securityand

Democracy

IRPP

Reg Whitaker andStuart Farson

Accountabilityin and for NationalSecurity

F ounded in 1972, the Institute for Research onPublic Policy is an independent, national,nonprofit organization.

IRPP seeks to improve public policy in Canada bygenerating research, providing insight and sparkingdebate that will contribute to the public policydecision-making process and strengthen the quality ofthe public policy decisions made by Canadiangovernments, citizens, institutions and organizations.

IRPP's independence is assured by an endowment fundestablished in the early 1970s.

F ondé en 1972, l’Institut de recherche enpolitiques publiques est un organisme canadien,indépendant et sans but lucratif.

L’IRPP cherche à améliorer les politiques publiquescanadiennes en encourageant la recherche, en mettantde l’avant de nouvelles perspectives et en suscitant desdébats qui contribueront au processus décisionnel enmatière de politiques publiques et qui rehausseront laqualité des décisions que prennent les gouvernements,les citoyens, les institutions et les organismescanadiens.

L’indépendance de l’IRPP est assurée par un fonds dedotation établi au début des années 1970.

Reg Whitaker is distinguished research professoremeritus at York University and adjunct professor ofpolitical science at the University of Victoria. Hewrites on Canadian politics and on security andintelligence, and his publications include Canadaand the Cold War (2003) and The End of Privacy:How Total Surveillance Is Becoming a Reality (1999).He served as a member of the advisory panel toJustice Dennis O’Connor for the second part of theCommission of Inquiry into the Actions of CanadianOfficials in Relation to Maher Arar. He also chaired afederal advisory panel to review aviation security. In2007, this panel also reported on aviation securityissues to the Honourable John Major in theCommission of Inquiry into the Investigation of theBombing of Air India Flight 182.

Stuart Farson is an adjunct professor of politicalscience at Simon Fraser University. He served asresearch director for the parliamentary committeethat reviewed the Canadian Security IntelligenceService Act in 1989-90. He has worked with researchinstitutes in Europe, North America and the PacificRim, testified before numerous parliamentary com-mittees, and acted as an adviser to Canadian gov-ernment and NATO task forces and workshops. Hewas an expert witness for the Commission ofInquiry into the Actions of Canadian Officials inRelation to Maher Arar and in recent national secu-rity litigation involving port workers and the MarineTransportation Security Clearance Program. He isthe author of numerous articles and book chapterson security and intelligence, and he co-editedSecurity and Intelligence in a Changing World: NewPerspectives for the 1990s, Intelligence Analysis andAssessment and the PSI Handbook of GlobalSecurity and Intelligence: National Approaches.

This publication was produced under thedirection of Mel Cappe, President, IRPP, andWesley Wark, Fellow, IRPP. The manuscript wascopy-edited by Barbara Czarnecki, proofreadingwas by Zofia Laubitz, production was by ChantalLétourneau, art direction was by SchumacherDesign and printing was by AGL Graphiques.

Copyright belongs to IRPP. To order or requestpermission to reprint, contact:

IRPP1470 Peel Street, Suite 200Montreal, Quebec H3A 1T1Telephone: 514-985-2461Fax: 514-985-2559E-mail: irpp@irpp.orgwww.irpp.org

All IRPP Choices and IRPP Policy Matters areavailable for download at www.irpp.org

To cite this document:

Whitaker, Reg, and Stuart Farson. 2009.“Accountability in and for National Security.” IRPPChoices 15 (9).

The opinions expressed in this paper are those of the authors and do not necessarily reflect the views of IRPP or its Board of Directors.

1

Contents2 Introduction

4 The Concept of Accountability

13 Historical Map of National SecurityAccountability

32 The Post-Arar Accountability Reform Agenda

36 What We Know about the Current System ofAccountability

38 Conclusions and Policy Recommendations

43 Notes

48 References

53 Résumé

54 Summary

Security and Democracy / Sécurité et démocratieResearch Directors/Directeurs de recherche

Mel Cappe and/et Wesley Wark

This IRPP research program explores the complexchallenges confronting Canada with regard to thepost-9/11 security environment and its impact ondomestic and international policies. The researchaddresses issues that are in many ways new to thecountry and to the formulation of Canadian nationalsecurity policy, above all the threat posed by global,transnational terrorism. The program examines theinterrelationships between new security demands anddemocratic norms, focusing in particular on thebuilding blocks of a sound democratic model fornational security, namely, effective intelligence;capable law enforcement; appropriate, stable laws;good governance; accountability; citizen engagementand public knowledge; emergency response capabili-ty; wise economic policy; and public-private-sectorpartnerships.

Ce programme de recherche s’intéresse aux défis desécurité d’une grande complexité que le Canada doitrelever depuis le 11 septembre, de même qu’à leurincidence sur nos politiques nationales et interna-tionales. Il traitera d’enjeux souvent inédits pournotre pays en matière de sécurité nationale, notam-ment le terrorisme mondial et transnational. Le pro-gramme vise à analyser l’interrelation entre les nou-velles exigences de sécurité et les normes démocra-tiques, de manière à définir les éléments de base sui-vants : un modèle de sécurité nationale pleinementdémocratique, notamment en matière de renseigne-ment ; l’efficacité du maintien de l’ordre ; la stabilitéet la légitimité des lois ; la gouvernance éclairée ; laresponsabilisation ; l’engagement citoyen et l’infor-mation du public ; l’intervention d’urgence ; une poli-tique économique avisée ; et les partenariats entre lessecteurs public et privé.

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Introduction

I n this paper, we examine the complex system ofaccountability that applies to government depart-ments and agencies responsible for Canada’s

national security.1 Our objective is to identify and dis-cuss both the process of accountability and the purpos-es underpinning it. We believe these purposes areprimarily to protect the state’s democratic fabric; topreserve and enhance its national interests; to ensurethe safety of its citizenry; and to prevent the abuse ofextraordinary intrusive or coercive powers. Questionsof both the propriety and the efficacy of governmentdepartments and agencies therefore necessarily follow.In pursuing such questions, we hope to elaborate uponboth the strengths and the weaknesses of the Canadiansystem. We intend to put forward recommendationsthat would enhance Canada’s system of accountabilitywithout simultaneously hindering the operations ofthose involved in protecting Canada’s national security.

Several conceptual difficulties need addressing. Aninitial caveat: accountability and national securityare both contentious terms. While we explore variousconceptions of accountability, we should acknowl-edge that what constitutes national security is itselfdebatable (Saltstone 1991, 36-54; Forcese 2006, 963-1000; Forcese 2008b, 3-13). The mere fact that a gov-ernment claims something to be a matter of nationalsecurity does not necessarily make it so. Such claims,in fact, may be vehicles for avoiding closer legislativewatchfulness. On some occasions, they may be indirect conflict with other equally important concepts,such as the public interest. Such claims thereforedeserve careful consideration.

Other contentious concepts requiring special eluci-dation include review and oversight, especially whenindependent bodies conduct such processes. Of the

Accountability in andfor National Security Reg Whitaker and Stuart Farson

Governments have a broad choice of instrumentswhen it comes to developing new policy, scrutinizing itin progress and evaluating it after the fact for trans-parency, legitimacy and public participation. We findthat accountability has been sought for both proprietyand efficacy, two different but interrelated criteria,which we discuss in more detail later. While after-the-fact reviews may be appropriate for investigating mat-ters of impropriety, this does not negate the need forensuring before the fact that institutions have appropri-ate policies and procedures in place to guarantee propri-ety. In the case of efficacy, both before-the-fact scrutinyand after-the-fact scrutiny may similarly be appropriate.Thus, we will insist upon widening the scope of thedebate about how accountability should be understoodto include the practices of both review and oversight.

From our perspective, while various forms of scrutinyprocesses exist in all three branches of government,they fall into three general categories. First, there arethose that have only a propriety mandate. The commis-sioner for the Communications Security EstablishmentCanada, for example, has no legal authority to evaluatewhether the agency is achieving its intelligence objec-tives. Second, certain commissions of inquiry have dealtmainly with matters of efficacy. Finally, institutions likeParliament and to a degree the Security IntelligenceReview Committee (SIRC) arguably have an ongoingmandate to do both. In the latter regard, both the pow-ers available and how they are exercised are crucial.Here it is important to draw distinctions between pow-ers that are provided in law and those exercised in prac-tice. Three dimensions are of importance here: (1) accessin practice to documents and people; (2) the capacity toscrutinize bodies, to question responsible parties and toanticipate detailed and accurate responses from them;and (3) the process, timing, substance and independenceof the reporting procedures.

In this paper, we will also show that bodies such asParliament have considerable powers in law to accesspeople, papers and records, but do not necessarily exer-cise these fully in practice. Similarly, we demonstratethat offices such as that of the inspector general of theCanadian Security Intelligence Service (CSIS), whilehaving legal authority to see particular records, do notnecessarily always have access to the people who con-trol them, and thus cannot question the individualsresponsible for those records. We will also point to thefact that the capacity to question those ultimatelyresponsible for the control and management of anorganization, which is fundamental to the process ofaccountability, differs considerably. For example,

two, review is seen as scrutinizing institutional prac-tices after the fact, and is therefore less likely to beperceived as politically contentious. Oversight, how-ever, which is often associated with scrutiny begin-ning earlier and continuing after the fact, tends to bemore problematic because it is seen as necessarilyintruding upon executive systems of control andmanagement, which are geared primarily to ensuringinstitutional efficacy and compliance with policy,regulations and law. Although after-the-fact reviewhas generally been the preferred option in Canada forindependent scrutiny, we find this preference neitherdesirable nor entirely logical when measured againstthe objectives for accountability in national security.

We argue that the debate over how best to scruti-nize Canada’s security and intelligence communityhas not fully considered the strategic intent of thevarious bodies and processes selected to effectaccountability, nor has it adequately differentiatedbetween their capabilities. In short, there has been aninadequate assessment of their effectiveness in termsof what they should and can accomplish. Thus, thereare several important questions to ask of the institu-tions and procedures once they are in place, somenecessarily on an ongoing basis. For example:• To what extent do the various accountability proce-

dures make the entire security and intelligencecommunity understandable, transparent and public?

• Do the institutions have sufficient legal authorityto conduct meaningful scrutiny of both institu-tions and practices? Are they limited in practice inthe information that they receive or the peoplethey can interview?

• How independent are the institutions involved andwhat is the likelihood of their being co-opted?

• Does the organizational culture of an institutionlimit its capacity to scrutinize effectively?

• Are the institutions limited to scrutinizing oneorganization or several?

• Are they interested in both propriety and efficacy?• To whom do they report, and are their reports dis-

tributed in a timely fashion?• Can they make those with executive responsibility

account for their actions? Is the governmentobliged to respond to their reports within a settime frame?

• Can they effect change, and if so, how? For exam-ple, are their recommendations binding?

• Is there any institution or process that ensures allthe various accountability components are doingtheir respective jobs effectively?

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rather than the security and intelligence communityas a whole, a particularly important dimension whenquestions of overall efficacy are at stake.

We also acknowledge that this paper does not dis-cuss the role of the media or that of academics andthink tanks in making security and intelligenceorganizations more transparent and accountable inany discrete way. Each of these entities has played asignificant part and deserves separate consideration.In addition to their media reportage, individual jour-nalists have been responsible for numerous informa-tive books — some groundbreaking — on variousaspects of Canada’s security and intelligence commu-nity (Campbell 2009). The academic community hasbeen vibrant and growing, particularly since theestablishment of the Canadian Association forSecurity and Intelligence Studies in 1985, with hun-dreds of articles and books now available. Politicalscientists, historians, legal scholars and criminologistsare the most active but participants also come fromother disciplines. More recently, think tanks have alsobecome interested in the field, some devoting specialissues of their journals,2 others providing specialreports (Cooper 2007).

The Concept of Accountability

A ccountability may be defined in broad terms:A is accountable to B when A is obliged toinform B about A’s actions (or inactions) and

decisions, to justify them as appropriate and properand, in the case of misconduct, to suffer sanction(Schedler 1999, 13-28). We will attempt to exploresome of the complex dimensions of this concept later,but for now this broad definition will suffice.Accountability has particular reference to govern-ment and the control of political and administrativepower, but may also be applied to corporate gover-nance in the private sector and indeed to any organi-zational structure in which decisions affecting thepublic are regularly taken.

It is the consensus of many observers who havelooked into this issue that accountability in the con-text of national security has to be understood as aparticular case within the wider question of govern-mental accountability in liberal democracies. On theone hand, special rules must apply when consideringaccountability procedures for agencies tasked withprotecting national security that may not always be

Parliament, largely because of its committee systemstructure, the resources that committees command andthe procedures that they follow, frequently fails toquestion witnesses adequately when they appearbefore its committees (Savoie 2008b, 302). While com-missions of inquiry may do a better job in this regard,they sometimes fail to explore critically all the appro-priate policy questions, arguably a matter for whichparliamentarians may be better suited. Processes andorganizational culture offer useful explanations forsuch eventualities. We will also indicate that bodiessuch as SIRC, while having the legal obligation toreport on important issues in a timely fashion, some-times — as with the Air India bombing — have failedto do so. Here the actual independence of the report-ing bodies is important. The media, with restrictedaccess, suffer few limitations on what they report,while official bodies, with relatively unrestrictedaccess, often are constrained as to the details of whatthey may publicly disclose for legitimate reasons ofnational security.

The approach we take in this paper begins with anevaluation of the concept of accountability itself, dis-cussing in the process such problems as secrecy anddisclosure that may impede or enhance the practice.The analysis then adopts a historical approach toindicate how and when accountability proceduresdeveloped in Canada. We identify three periods witha view to showing that accountability constitutes anevolving but unfinished process. A summary of thekey findings follows, along with our policy recom-mendations.

We should note at the outset, however, that somematters are covered more broadly than others. Forexample, there is much greater emphasis on externalmodes of scrutiny and accountability than on thoseoperating internally: hence our distinction betweenaccountability in and for national security. The rea-son for this should be obvious. External processes aremore visible and better publicized than internal ones.Similarly, greater emphasis falls on organizations andintelligence practices that have been controversialthan on those that have remained out of the spot-light. Thus, the roles of the CSIS and the RoyalCanadian Mounted Police (RCMP) garner more atten-tion than those of analytical bodies such as theInternational Assessment Staff (IAS) in the PrivyCouncil Office (PCO) or the coordinating and policyroles of the PCO itself. We acknowledge that thisemphasis is itself problematic, as it tends to focusattention on the workings of individual agencies

for new procedures of accountability that would bothenhance the capacity of the legislative branch to keep acheck on the executive and, to an important extent,establish more direct lines of accountability betweenthe executive and the public. This process has acceler-ated since the 1960s, with populist campaigns emerg-ing from both the right and the left of the politicalspectrum that have sought new ways to democratizethe political system. Sometimes this has taken the formof attempting to transform political parties into moreresponsive instruments of popular will, attempts thathave foundered on the realities of pluralistic trade-offsand compromises characteristic of democratic politics.More often, it has taken the form of new or improvedinstitutional mechanisms to audit the actions of gov-ernment. Thus, an institution such as the Office of theAuditor General (OAG), which reports to Parliament onthe operations of the executive, has developed, espe-cially under the current auditor general, Sheila Fraser, apopular following as a kind of tribune of the peopleuncovering waste and malfeasance in government. Thesame could be said for special commissions of inquiryset up to investigate scandals. The televised GomeryCommission hearings, for example, developed a sur-prisingly large and attentive audience in Quebec forhearings probing corruption and kickbacks in the spon-sorship program.

In the 2004 and 2006 national elections, accounta-bility, or lack thereof, was a leading campaign issue.The Liberal government of Paul Martin was battered bycharges of corruption and cover-up and an alleged“culture of entitlement.” The Conservatives came intooffice pledging to clean up government and make itmore accountable. The new government, following acampaign promise, enacted the Federal AccountabilityAct as one of its leading priorities.3 This legislationexemplifies the somewhat fuzzy meaning of accounta-bility; despite its name, the Act does not define theconcept, and includes within its scope several measuresthat have little apparent connection to accountability,as such.4 It is as if the term accountability has such agood ring to it that it was deemed the most appropriatelabel for an omnibus administrative reform bill.

Ironically, some well-informed experts have beenarguing that in practice accountability has actually beendeteriorating in the face of the growing power of thePrime Minister and cabinet, despite the popularrhetoric.5 In any event, there is little clear agreement onwhat accountability should actually mean, what practi-cal measures will best improve it or even what thestrategic intention of particular specific mechanisms

applied to many other agencies of government. Inparticular, there are special constraints on disclosureof information and limitations on the degree of trans-parency of operations that can be permitted. On theother hand, special protections against the misuse ofthe intrusive and coercive capacities that security andintelligence agencies have at their disposal deserveparticular attention. Accountability procedures fornational security must be uniquely designed for thisspecific purpose, and may not necessarily serve asmodels for wider accountability requirements.

Accountability as democratic buzzwordHowever distinct the policy issues may be, it cannotbe mere coincidence that demands for greateraccountability in national security have grown inrecent years in parallel with the broader popularity ofaccountability as a democratic standard. Althoughthere have always been specific national securityissues and concerns that have driven the process ofdesigning or improving accountability systems in thisarea, the broader context has informed and colouredpublic expectations, perhaps not always realistically.

Accountability has in recent years become a popu-lar buzzword in liberal democracies, as an aspect ofcampaigns to democratize the political process. Likemost buzzwords enjoying a popular vogue, the ideabears an unmistakable general thrust but lacks a con-sensus on a precise definition.

For many, the term implies simply an enhancedlevel of transparency in government. Elected office-holders and appointed officials should be heldanswerable to voters and taxpayers for their actionsand their expenditure of tax dollars. When things gowrong, or are suspected of going wrong, there ought,it is widely believed, to be means available to checkthe process, identify problems, assign blame ifrequired and initiate corrective action. Authorities, itis argued, should not have an untrammelled right tohide behind a cloak of official secrecy when the pub-lic interest is at stake.

In one sense, the demand for greater accountabili-ty is an extension of a democratization process begunlong ago. In the nineteenth century, Canada’s consti-tutional democratization process was driven by thestruggle for responsible government, which meantrequiring the executive to maintain the confidence ofthe elected legislature. By the latter half of the twen-tieth century, rising dissatisfaction with the limita-tions of legislative control of an increasingly largeand complex administrative apparatus led to searches

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improving government performance, a former seniorOttawa public servant and student of public adminis-tration, David A. Good, cites three ways of looking ataccountability from the inside, as it were (Good 2003,166-73; Aucoin and Heintzman 2000, 43-53). Besidesaccountability for control, there is also accountabilityfor assurance and accountability for learning.

Accountability for control means controlling theabuse and misuse of public authority as well asinsisting upon administrative efficiency in the expen-diture of public funds. Accountability for assurance,on the other hand, is concerned about providingassurance to Parliament and citizens that publicauthority and tax dollars have been used appropriate-ly and ethically (this is close to the acquisition oflegitimacy, discussed above). Accountability forlearning means ways by which the assessment of per-formance becomes the stimulus for promotingimprovement. Good cautions that each of these formsof accountability hides tensions and contradictions,especially when all three are pursued simultaneouslyby organizations. He concludes that “any singleaccountability perspective is partial, incomplete, andin competition with the others. It is by skilfully com-bining and balancing all three that we are likely tosee the most progress” (2003, 179).

Another series of questions to be asked aboutaccountability systems may be summarized as follows.• Accountability for what?

What part of an agency’s mandate is it heldaccountable for; what precisely is the agencyanswerable for?

• Accountability to whom?To whom is the agency answerable? This apparent-ly simple question may not have a simpleresponse. There may be a diffuse set of offices orsites to which the agency answers, some for expla-nation, some for control, some for assurance, somefor learning.

• Accountability by whom?Who actually carries out the review or audit? Itmay be an internal or an external process, or somecombination. Public perception tends to be suspi-cious of internal review as lacking transparency.The most effective means of control are internal,but these may require unusual transparency forlegitimation.

• Accountability of whom?At first glance, this may look like another take on“of what,” but in practice it is a distinct question.For example, is the agency head held effectively

should be. Nor is there a clear consensus on whatmight constitute appropriate mechanisms for achiev-ing greater accountability. Furthermore, there is littleappreciation of the often unanticipated and sometimesperverse consequences of new accountability meas-ures. The controversy that led to the FederalAccountability Act offers one example: following thepublic revelations of the sponsorship affair, the Martingovernment, in a failed pre-emptive strike, enacted aseries of new controls and constraints on the publicservice. Together with some of the provisions of theFederal Accountability Act, these measures have had adamaging impact on governmental efficiency and themorale of public servants. Legitimate grant programshave become almost paralyzed with over-bureaucrati-zation — all in the name of greater accountability.6

AccountabilitiesAccountability processes can serve quite differentobjectives; these objectives can be met by differentstrategies. Thus, there is a need to examine the conceptmore analytically and strategically. There are someclear distinctions that can be made. Accountabilitymay be controlling and/or explanatory (Marshall 1978,51-65). Accountability as a control mechanism is exer-cised most often within organizations in a hierarchicalpower structure. Accountability as an explanatoryprocess more often involves the cooperation of anorganization with an external body that reviews oraudits its performance. Accountabilities for control andfor explanation should ideally work together. A work-ing example is the external audit function, performedby an independent body such as the OAG, recommend-ing changes in organizational procedures that are theneffected internally. Scrutiny leads to explanation andthus informs control.7

Processes of accountability might seem to imply arelationship of power or influence over those held toaccount, whether by control or by cooperation. Butaccountability importantly offers legitimacy to thosepersons or organizations held accountable. By effective-ly managing the presentation of information about theiractivities, organizations can communicate a favourableimage of themselves via their reviewers.8 As a result,external review bodies are sometimes said to have beenco-opted by the agencies they review (Johnson 2005,72-3). This is not inevitable, but it is a frequent outcomeof accountability in practice. Anyone designing newaccountability procedures should remember the question“Who will watch the watchers?”

Examining accountability from the perspective of

strengthened procedures for administrative accounta-bility may have the effect, intended or unintended, ofeffectively reducing ministerial responsibility and thusministerial control. Thus, paradoxically, while statutorymeasures such as those making the director of CSISresponsible for the “management and control of theservice under the direction of the Minister” may haveoriginally been intended to enhance the accountabilityof the civil service to the minister, they may in the longrun have made the minister less answerable toParliament for aspects of the service’s functions.

There is also the issue of the role of Parliament, quaParliament, in relation to ensuring the responsibility ofministers and the accountability of the government inand to Parliament. In the case of the sponsorship affair,the Public Accounts Committee of the House (chairedby an opposition MP) held well-publicized hearings inparallel with the hearings of the Gomery Commission.In the case of the Mulroney/Schreiber affair, the HouseCommittee on Access to Information, Privacy andEthics (also chaired by an opposition member) calledthe two key witnesses to testify, before the specialadviser appointed by the Prime Minister made his rec-ommendation to the government on the terms of refer-ence for a public inquiry. While Parliament is clearlywithin its rights and privileges to hold such hearings,any recommendations or findings it may make, in theseor similar circumstances, rest in ambiguous relation tothose of the findings of a public inquiry, especiallywhen the Canadian Parliament has no say — as is thecase in some jurisdictions — regarding the terms of ref-erence of commissions of inquiry. The role ofParliament in accountability or responsibility in rela-tion to the executive is an unresolved problem at theheart of the Westminster system. At its heart is a con-flict in the roles parliamentarians perform. On the onehand, they are expected to follow party interests,attacking or defending the government according tothe side of the House on which they sit. On the other,all parliamentarians have an obligation to pursue par-liamentary interests on behalf of all Canadians by scru-tinizing the activities of the executive branch,particularly concerning the expenditure of public fundsand compliance with law and policy generally.

In short, despite the popular currency of the idea ofaccountability, there is no clear and unique definitionof accountability that attracts a broad consensus, andno single form of accountability that obviously answersto the contemporary democratic demand. Perhaps itwould be better to think of many accountabilities,operating in parallel beside one another, each

responsible and answerable for shortcomingsfound by auditors or reviewers, or is responsibilitymore diffusely spread through the organization?

• Accountability when?The question of timing may have very real conse-quences. From the point of view of an operationalagency, accountability in the form of oversightover ongoing business is different from ex postfacto review or audit. Yet even the latter may haveoperational consequences if officials alter theirbehaviour in expectation of the later findings ofexternal review.A central ambiguity in the institutionalization of

accountability lies in its constitutional role inWestminster governmental systems, particularly withregard to Parliament. At issue here is the continuedinterplay between two crucially important constitu-tional conventions: accountability and ministerialresponsibility. This has left an important problemunresolved, a potential conflict between ministerialresponsibility and the accountability of appointedofficials, which begs the question: Who is ultimatelyanswerable? Historically, ministers of the Crown wereconsidered to have a unique and the sole legal andpolitical responsibility for an accounting toParliament of all the actions and inactions of the per-sonnel within their respective portfolios. However, asthe complexity and size of government have grownin recent decades, so has the reluctance of ministersto take full responsibility for actions of their depart-ments and officials, or at least to take responsibilityto the extent of resignation in recognition of seriouserror. At the same time, governments have attemptedto distinguish between matters of ministerial andbureaucratic responsibility. Initially, a division wasdrawn between issues of policy and those of adminis-tration; this was at best a divide that sometimeslacked clarity. More recently, however, there havebeen efforts to draw a distinction between accounta-bility and answerability — the latter encompassingthe role and responsibilities of senior bureaucrats —and to provide for designated persons as departmen-tal accounting officers.9 Such persons now have alegal obligation under the Federal Accountability Actto appear before parliamentary committees to answerquestions on management practices, changing signif-icantly in the process the relationship between seniorbureaucrats and Parliament. While there may be somejustification for a diminished level of direct ministeri-al responsibility for all the activities of very large andcomplex organizations, there has to be concern that

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“cabinet confidences,” which include not only cabinetminutes and decisions but also documents submittedto cabinet by the senior public service,10 are excludedfrom the Access to Information Act for at least 20years.11 Of course, there are also legal and ethical rea-sons for maintaining forms of administrative secrecy.The larger government has become, the more itsoperations penetrate and influence society, thegreater the need to maintain secrecy about its plans,lest private interests gain financial or competitiveadvantage from “inside information.” Thus, there arestrict requirements for secrecy surrounding the prepa-ration of both budgets with tax implications and reg-ulatory instruments for the private sector.

Secrecy in government may be inevitable, but theacceptable degrees and limits of secrecy are oftenissues of controversy. This is especially the casewhere accountability is in question. The administra-tive requirements of confidentiality and the need forrelative transparency in holding governmentsaccountable are in persistent tension with each other.Accountability fails when secrecy is deliberatelyemployed to cover up incompetence or wrongdoing.Yet an accountability mechanism that fails to respecta legitimate or practical reason for secrecy will beunworkable. It should be noted that not all accounta-bility systems necessarily require full public disclo-sure, especially where political sanctions are notrequired. Successful accountability procedures mustnegotiate a delicate path between secrecy and trans-parency, which is easier said than done.

Problems of accountability in nationalsecurityThe secrecy/transparency problem is magnified whenaccountability is applied to national security issuesand practices. The various organizations making upCanada’s security and intelligence community havespecial and necessary requirements for secrecy thatexceed the requirements for secrecy in other areas ofgovernment operations. Mechanisms appropriate toordinary forms of public administration are usuallyinappropriate in a context in which secrecy is the gen-eral operational rule, to which exceptions are allowedonly sparingly, not to speak of grudgingly. Nationalsecurity operations are often opaque not just to thepublic but to other public servants who are not part ofthe security apparatus, and this privileged access tosecrecy is jealously guarded. Based on experience else-where, public expectations of accountability in nation-al security are relatively high, but it is a complex task

answering to different aspects of the questions oftransparency and democratic control, each perform-ing better or worse depending on its context, itsdesign, the relative tractability of the issues on whichit is brought to bear, and the organizational culturesof those performing the task.

Secrecy and accountabilityAccountability and transparency seem to go hand inhand. Yet even in a liberal democracy, public admin-istration is rarely public, in the sense of being trans-parent to the public eye. Much of the business ofgovernment necessarily takes place behind closeddoors, just as much of the business of private corpo-rations is kept securely out of the public eye. Thereare both good and bad reasons advanced for secrecy.It is the job of auditors and reviewers to expose badreasons and cover-ups. By the same token, accounta-bility must respect the legitimate grounds for secrecy,which may be desirable in the public interest, andmust work within certain limits on transparency.

The first sociologist of bureaucratic organization,Max Weber, wrote that a high degree of secrecy ischaracteristic of all bureaucracy (Weber 1970, 233-4).According to a leading observer of British govern-ment, administrative secrecy is “Whitehall’s cardinalvirtue and dominant characteristic.” He suggests that“secrecy is the bonding material which holds therambling structure of central governmenttogether...Of all the rules of government, secrecy isthe most sacred” (Hennessy 1990, 345-6). TheCanadian political scientist Donald Savoie commentsthat “things are not much different inCanada...Secrecy and confidentiality have also per-meated government operations in Canada” (2003, 44).

One of the rationales for secrecy is the highlycompetitive and partisan nature of the parliamentaryprocess. Information about government is used by theopposition as the source of criticism. In practice, gov-ernments often try to minimize their exposure topolitical risk by managing the presentation of infor-mation in ways that enhance their political credibili-ty. Government and opposition are only fulfillingtheir respective roles in a competitive democraticenvironment, but the result is that secrecy is the rule,while disclosure is the exception, either forced ormanaged, as the case may be.

It has always been a principle of the Westminstersystem of government that cabinet deliberationsremain strictly confidential, thus allowing individualministers to speak their minds freely. As a result,

Secrecy of investigative methods and tradecraftEqually important to national security agencies is the pro-tection of information about their methods of investiga-tion, including technical means of intrusive surveillance.Since the targets of security surveillance and criminalinvestigations constitute covert or concealed threats to thesecurity of Canada, the methods used to identify andassess these threats and initiate criminal prosecutionsmust necessarily be protected from disclosure, becauseany such information could assist those targeted to evadedetection. Investigative methods may encompass a widerange of matters, from targeting to budgeting of resources,from operational technology to the “tradecraft” of theagency’s operatives (the accumulated experience and cul-ture of how they go about their business).

As with human sources, investigative methods areprotected against disclosure under the Access toInformation Act and Privacy Act, and may also beblocked from disclosure in court under the strength-ened evidence provisions of the Anti-terrorism Act.

Secrecy of information received in confidencefrom abroadA major reason for secrecy is the reliance by Canada’svarious national security agencies on informationreceived in confidence from foreign governments andtheir agencies, or from international organizations. Asignificant proportion of the intelligence on whichCanada relies to assess threats to Canadian securityresults from intelligence exchanges and informationsharing with cooperating agencies in friendly countries.Much of the intelligence that Canada receives is desig-nated as confidential and released only on the guaran-tee that it will not be publicly revealed. In some cases,the intelligence is accompanied by caveats limitingaccess to the recipient agency only; the latter is expect-ed to restrict circulation even to its allied agencies.Canada, in turn, shares its intelligence with cooperatingforeign agencies on the same basis of confidentiality.Breaches of these arrangements could result in a break-down of the networks of intelligence exchange, whichcould seriously damage the effectiveness of securityand law enforcement cooperation in Canada andabroad. Thus, Canadian agencies are insistent that con-fidentiality regarding all information received fromallied and cooperating agencies must be protected fromunauthorized disclosure.

A number of legal guarantees against unauthorizeddisclosure of material received in confidence areembedded in various Canadian statutes, including thenew Security of Information Act, and in evidentiary

to devise, deliver and administer appropriate mecha-nisms that do not undermine the requisite opacitywithin which national security agencies operate. It isnonetheless the case that the specific requirements forsecrecy must be taken fully into account in designingany accountability system in this area. We can look atthese specific requirements in turn.

Secrecy of sourcesThe police, the military and intelligence agencieshave always relied upon human sources of intelli-gence. They have been adamant that the identities oftheir sources, and the identities of agents operatingunder cover, must be fully protected from public dis-closure. The ironclad promise of anonymity ofsources is crucial to recruitment and retention: what-ever the motive for cooperating (which may rangefrom idealism to coercion to financial incentives, ormixtures thereof), potential human sources must beassured that their double identities will never berevealed. The moment the identity of a source is dis-closed, the usefulness of that source is terminated. Inmany cases, as with the penetration of violent organ-izations, the protection of the identity of a sourcemay be literally a matter of life or death. Moreover,the disclosure of one source may jeopardize the abili-ty to recruit others.

The Canadian Security Intelligence Service Act(CSIS Act) makes it a criminal offence punishable byup to five years’ imprisonment for an official or for-mer official to make an unauthorized disclosure ofthe identity of “a confidential source of informationor assistance” to CSIS or “any person who is or wasan employee engaged in covert operational activitiesof the Service.”12 The Access to Information Act con-tains exemptions for information that “would revealthe identity of a confidential source of information”in criminal law enforcement investigations, or “anyrecord requested under this Act that contains infor-mation the disclosure of which could reasonably beexpected to threaten the safety of individuals.”13

The disclosure of confidential sources has some-times been an issue when deciding whether to initiatecriminal prosecution in national security cases thatrest on the testimony of confidential sources.14 Part 3of the Anti-terrorism Act contains a number ofamendments to the Canada Evidence Act15 seeking toprotect against the disclosure in open court of theidentities of sources in anti-terrorist cases.16

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political accountability. Individuals who fail to com-ply are liable to be held in contempt of Parliament. Inpractice, however, government documents and per-sonnel have tended to be made available at the dis-cretion of the government because the executive isnormally able to exercise its majority. While for themost part parliamentarians have tended to demon-strate a certain deference to government when facedwith a disinclination to release information or tomake people available, there have been notableexceptions to this general rule.18 It should be notedthat in minority Parliaments — such as have been inplace since 2004 — there is no such capacity on thepart of government to thwart the intent of StandingOrder 108. Nor has the Liberal majority in the Senateused its powers to force the disclosure of informationfrom the current Conservative government.

Once in Parliament, members are free to use suchinformation as they see fit. Parliament’s record forkeeping its own documents confidential is not partic-ularly good. There have, for example, been numerousleaks of committee reports before they were tabled inthe House. With regard to the release of informationprovided during in camera hearings, which is meantto remain private, Parliament’s record is better, butnot foolproof.19 Thus, the possibility of sensitiveinformation becoming public through Parliament ispotentially a matter of genuine concern for intelli-gence officials.

National security and law enforcementThe need to maintain high levels of secrecy innational security matters is not the only barrier toaccountability. Threats to national security pose anintelligence problem to governments charged withthe responsibility for maintaining public safety andpromoting the national interest. National securityagencies collect information and assess such threats,sometimes employing intrusive surveillance and otherextraordinary powers to do so. But security threatsalso pose a law enforcement problem, particularlywhere criminal investigations and criminal prosecu-tions may be undertaken.

In Canada, before 1984, both security intelligenceassessments and national security criminal investiga-tions were the responsibility of the RCMP. Followingthe recommendations of the McDonald Commission(Commission of Inquiry concerning Certain Activitiesof the Royal Canadian Mounted Police) in 1981, thegovernment accepted that this combination of respon-sibilities in a single policing agency was inappropriate.

procedures in Canadian courts when disclosure couldbe considered injurious to the conduct of internation-al relations.

Accountability and disclosureEven if the special case for secrecy is granted, it is nolonger considered acceptable that secret agenciesshould be able to act, in effect, as sole judges in theirown cases in defining what must remain secret andwhat may be disclosed. Disclosure decisions are nor-mally subject to judicial review, even if it is necessaryto hold ex parte proceedings, where secret material isreviewed in camera. Accountability procedures fornational security typically operate with some mixtureof publicity and secrecy. Review bodies have accessto information that cannot be disclosed, or even insome cases explicitly referenced in public, but thisneed not deter them from reporting their findingspublicly, with as much indication concerning confi-dential material as can be reasonably summarized.Occasionally, disputes over disclosures between agen-cies and those bodies reviewing their activities mayrequire adjudication by the Federal Court. But nolonger can the requirements of secrecy be taken as abar to external accountability.

Secrecy, moreover, is not merely a matter of insid-ers versus outsiders. Within the executive branch ofgovernment, those directly involved in national secu-rity have privileged access to secrets not generallyavailable to other departments and agencies. To theextent that they can withhold information from otherparts of the executive, they may be less accountable.Even within security and intelligence agencies, thereare well-known practices of compartmentalizationand the “need to know” principle that limit the trans-parency of operations to colleagues, let alone out-siders. This is a problem that only accentuates theneed for accountability within government as well asfrom the outside.17

It should be noted that while individual MPs andsenators are limited, Parliament as a body is notrestricted in its actions, except by legislation thatspecifically binds the Crown. Thus, for example, it isnot limited in its access to records by the Access toInformation Act, the Security of Information Act orthe Privacy Act. In fact, Standing Order 108 of theHouse of Commons and a similar Order of the Senateexpressly provide the two houses, and their commit-tees through delegation, with the capacity to call forsuch “persons, papers and records” as they choose,thus providing a quintessential enabling aspect of

lap but are analytically distinct. Both are essential fordeveloping and maintaining public trust in governmentand its institutions. Both are processes that are stillevolving in meaning and in practice, and each has dif-ferent historical origins.

Accountability had its origins as a constitutionalconvention in Westminster systems of government(where the executive and the legislature are fused). It isdirectly related to another constitutional conventioncovering the notion of ministerial responsibility. In thissense, it relates to the obligation of ministers to accountfor the actions and inactions of the departments andagencies within their respective portfolios in and toParliament. The responsibility is both a political one anda legal one. Parliament has certain powers and privi-leges it can use to ensure that this accounting occurs.21

As already indicated, accountability has morerecently taken on broader meanings. These imply thatgovernment actions should be as transparent as possi-ble and that there should be public input into the poli-cy process. Thus, the process of accountability mayencompass measures that are practised by the formalarms of government as well as by other elements ofcivil society (academic writers, the media, think-tankresearchers, nongovernmental organizations). Many ofthese conceptual frameworks and practices have beendeveloped in the US.

The notion of oversight had its origins in the US.There it refers to the scrutiny of the executive branchof government by the legislative and judicial branches.In the congressional sense, oversight takes many formsand serves several different objectives: appropriation,authorization, scrutiny of legislation, fact-finding,review of governmental practice and the evaluation ofbest practices.

Oversight has often been misconstrued outside theUS as necessarily involving control over agencies,departments and government practices (Public SafetyCanada 2004). Oversight sometimes applies controls,but this is not necessarily always the case. This has ledto arguments (particularly in Westminster systems) thatfavour after-the-fact reviews rather than scrutiny dur-ing or before the fact. It should be noted that thescrutiny of government departments, agencies and pro-grams for performance and capability necessarilydemands some degree of before-the-fact scrutiny (Light1993, 14).

Twenty-five years ago the term oversight was seldomused outside the US. When it was employed to refer toother governmental systems, critics referred to it asbelonging to the congressional system and not applica-

Consequently in 1984, Parliament passed the CanadianSecurity Intelligence Service Act, creating CSIS as aservice without police powers, along with the SecurityOffences Act,20 which specifies law enforcementresponsibilities for the RCMP regarding national secu-rity offences. This institutional division of roles fornational security is one that has long been practised inthe United Kingdom, where the Security Service,known as MI-5, is separated from the various SpecialBranches of UK police forces, which alone have lawenforcement responsibilities. However, in the UnitedStates, the Federal Bureau of Investigation (FBI) stillcombines both security intelligence and national secu-rity law enforcement within the same agency.

Whatever the institutional arrangement, the dis-tinction between security intelligence and lawenforcement is important in determining appropriatemechanisms of accountability. In regard to lawenforcement, Canada retains the well-known princi-ple of police independence, requiring an arm’s-lengthrelationship between external political control anddecisions to initiate and/or to halt criminal investiga-tions, as well as to prosecute. This has been widelyaccepted as a necessary safeguard against a govern-ment that might abuse its law enforcement powers byarbitrarily directing them at its opponents.

In regard to security intelligence, direct politicalcontrol — as opposed to accountability — of agenciesengaged in sensitive national security threat assess-ments is generally regarded as not only desirable butnecessary. In the absence of such control in the formof ministerial responsibility, security intelligenceagencies with their extraordinary and intrusive pow-ers might be seen as a potentially unchecked threatnot only to the rights and liberties of citizens, buteven to the elected government of the day.

Where the two functions overlap, especially whenthey overlap within the same agency, there is inevitabletension between the need for an arm’s-length relation-ship and the need for direct control. In the early 1980s,Parliament prescribed different accountability proce-dures for CSIS and the RCMP, reflecting their differentroles and the different principles of governance sur-rounding these roles. The overlap of functions must befully taken into account in devising an effectiveaccountability system for a law enforcement agencyinvolved with national security issues.

Accountability and oversightAccountability is sometimes viewed in conjunctionwith or in contrast to oversight. These concepts over-

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ically and legally responsible for the control andmanagement of the security and intelligence commu-nity may eventually have to provide.

The term oversight is now used broadly in democ-racies (old and new) to encompass the variousprocesses by which government action is scrutinized.It is now often used to encapsulate the entire processby which bodies are scrutinized and made transpar-ent. The process of making something transparentultimately depends on having the capacity to ask per-tinent questions. The mere fact that the executive hasan obligation to provide an account does not in andof itself make something transparent. The accountmay not be sufficiently detailed, and may even bemisleading or obfuscating. You have to know what toask. To know what to ask, in many respects, dependson the breadth of one’s capacity to scrutinize govern-ment actions.22

In the end, much comes down to the question ofpublic trust. When governments impose new securityprocedures that have serious potential consequencesfor individual rights and liberties and insist that theseprocedures are necessary to combat new heightenedthreat levels, the public needs to believe not only thatthe governmental analysis is accurate, and thatinfringements on rights and liberties are warrantedunder the circumstances, but also that the govern-mental organizations charged with dealing with theheightened threats are up to the task. Public trust inthe intelligence capacity of governments has beenshaken by the failure to anticipate and prevent the9/11 attacks, but also by the misuse and abuse ofintelligence by the American and British governmentsto justify the unsanctioned invasion of Iraq in 2003, apolicy decision now widely understood as constitutinga major fiasco. One senior Canadian intelligence offi-cial has stated confidentially that the politicization ofintelligence over the Iraq War has done serious dam-age to the “intelligence brand.” These intelligence fail-ures and their political consequences impose a heavyburden on those attempting to restore public trust.This burden does suggest a greater emphasis on over-sight, as opposed to ex post facto review.

Another important dimension of good governanceconcerns the issues of unintended consequences.Normally, greater transparency is thought to makefor more effective and efficient processes of govern-ment. In certain areas of government — nationalsecurity may be one — greater levels of review andoversight may in practice detract from efficiency byimposing undue burdens on management. Similarly,

ble elsewhere, particularly to the Westminster model.Two arguments buttressed this position when appliedto Canada. One was the notion of after-the-fact review.The other was that oversight necessarily implied a con-trolling function. Such arguments have been repeatedin recent times — albeit in modified form — but with-out solid substantiation. Consequently, their basicpremises deserve a critical examination in three impor-tant respects.

First, American congressional experts themselvesdo not necessarily agree that oversight always impliesa controlling function on governmental practice byCongress (Aberbach 1990, 217-9). As we have shownwith the concept of accountability, congressionaloversight serves many functions. In some instances,such activities do lead Congress to impose certaincontrols through its more independent capacity tolegislate, and through its ability to tighten funding.But, equally, in others it does not do so. The responsi-bilities of the permanent select committees on intelli-gence are a case in point. Thus, congressional expertsprefer to perceive oversight in less dramatic terms asscrutiny of government action.

Second, scrutiny of government action is nowpractised by a variety of government organizations,representing all three branches of government.Within the administration such scrutiny is providedby various inspectors general who form part of theindividual departments and agencies as well as thevarious advisory bodies that are directly available tothe president. To these must be added the variouscongressional committees as well as funded andstaffed bodies such as the Government AccountabilityOffice and the Congressional Research Service, whichreport directly to Congress, and the role performed bythe judicial branch both in hearing cases broughtbefore the courts and in authorizing or rejecting war-rant applications. These bodies, it should be noted,vary considerably not only in the powers and accessthey have available but also in the degree of controland influence they can exert on those actuallyresponsible for the agencies and structures involved.

Third, the term oversight is now widely usedacross a full range of governmental systems, includ-ing those of the Westminster model, not just the con-gressional system. Such usage, like that of Americanexperts, seldom implies more than scrutiny, and it isin this sense that we would employ it here. We wouldalso argue that scrutiny by such review and oversightbodies is a necessary precursor to the reports theymay issue and hence to the accounts that those polit-

even though only about half of those named were eversubsequently convicted of espionage or related offencesin a court of law. In the aftermath of the Gouzenkoaffair, following the recommendations of the royalcommission, the government of Canada constructed apeacetime national security state (Whitaker andMarcuse 1994), with screening of public servants andlater of immigrants and citizenship applicants, and anextensive domestic surveillance operation by the RCMPSecurity Service that by the latter stages of the ColdWar had accumulated dossiers on some 800,000 indi-viduals and organizations (Commission of InquiryConcerning Certain Activities of the Royal CanadianMounted Police 1981, 1:518).24

Despite grounds for concern about the rights andliberties of citizens in the face of this “political polic-ing” of Canadian civil society, and despite occasionalpublic protests, it is remarkable how slowly proposalswere gathered for the establishment of mechanisms tomake the operations of the secret state more democrati-cally accountable. Until the late 1960s, Canadians byand large appeared to accept that national securityagencies should work in secret, unchecked by anyscrutiny outside the executive of the efficacy or propri-ety of their operations. Debates over national securityduring the two world wars and the early Cold Waryears were relatively consensual and bipartisan. It wasonly in the 1960s that the first serious stirrings of con-cern about a lack of accountability appeared. In 1965,two security-related scandals burst into public view aspartisan political issues. The firing of a sick and dyingVancouver postal worker because he was suspected ofbeing a Soviet spy caused a public outcry. Then theGerda Munsinger affair implicated two cabinet minis-ters from the previous Progressive Conservative gov-ernment in a relationship with a woman believed tohave possible connections to Soviet espionage. Underconsiderable pressure from Parliament and the press,Prime Minister Lester Pearson called two separate com-missions of inquiry to investigate these affairs — theCommission of Inquiry into Complaints made byGeorge Victor Spencer and the Commission of Inquiryinto Matters Relating to One Gerda Munsinger, whichboth reported in 1966 — and then followed these upwith the Royal Commission on Security, with a widermandate to develop policy. The terms of reference forthis latter inquiry under M.W. Mackenzie were to“examine the operations of Canada’s security proce-dures with a view to ascertaining, firstly, whether theywere adequate for the protection of the state againstsubversive action and, secondly, whether they suffi-

more detailed accountability may lessen the effec-tiveness of the agencies if aspects of tradecraft arerevealed. But while such dangers may be present, acautionary note is nevertheless in order here.Intelligence bureaucrats in the US have sometimessought to undermine accountability systems by argu-ing that additional scrutiny would lead to “micro-management.”

Historical Map of NationalSecurity Accountability

History to 1970

N ational security activities of the federal gov-ernment, and in some cases of provincialgovernments, have a long history going back

to the early years of Confederation in the late nine-teenth century. Perceived threats were posed by vio-lent Fenian Irish and Sikh groups before the FirstWorld War, by Communist and Bolshevik movementsafter the Russian Revolution in 1917 and by fascistand Nazi movements in the 1930s. More controver-sially, trade unions, students, citizens’ associationsand advocacy groups were sometimes targeted by theauthorities as threats to Canadian security. In twoworld wars, there were alarms about enemy “fifthcolumnists” among immigrant communities; a num-ber of their members were identified and interned,their organizations were banned, and censorship wasimposed on them. The most notorious case was theforcible relocation of the entire Japanese-Canadianpopulation of the West Coast to camps in the interior(Adachi 1976), an act for which the Canadian govern-ment later apologized and provided some financialcompensation.23

In 1945-46, the defection of the Soviet cipher clerkIgor Gouzenko with documentary evidence of aSoviet spy ring operating in Canada was an impor-tant incident in the emerging Cold War between thewartime allies (Knight 2005). A secret order-in-coun-cil under the War Measures Act authorized the deten-tion and interrogation of a number of suspects,without benefit of legal counsel. The Taschereau-Kellock Commission took secret evidence and pub-lished a report (Royal Commission to Investigate theCommunication of Secret and ConfidentialInformation to Agents of a Foreign Power 1946) inwhich some two dozen persons were named asbetraying their country on behalf of a foreign power,

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innovation in national security accountability. Thekey difference from the earlier period was the partialrefocusing of domestic security away from the oldCold War Soviet “fifth column” threat to the targetingof a new internal made-in-Canada threat from vio-lent Quebec separatists. In October 1970, hostage tak-ing and political assassination by the Front delibération du Québec were met by the peacetimeinvocation of the War Measures Act against an“apprehended insurrection,” detention without chargeand without counsel of numerous suspects, censor-ship of the media and what amounted to martial lawon the streets of Montreal.

Through the 1970s, there followed an unprece-dented intervention by police and security authoritiesin Quebec against suspected separatists, unfortunatelynot always making clear distinctions between violentterrorist groups and legitimate indépendantistegroups like the Parti Québécois that may have repre-sented a threat to national unity, but not to nationalsecurity. New Left and peace movements, mainlyindependent of Communist influence, were also tar-geted outside Quebec. Excessive, invasive and some-times illegal actions by both federal and provincialpolice later led to a series of commissions of inquiryat both the federal and provincial levels.28 Althoughmost Canadians opposed Quebec secession, the intru-sive intervention by “secret police” in the politicalactivities of Canadians unconnected to hostile foreignpowers raised questions about democracy and therule of law that seemed to demand structural reformand accountability of national security operations.

Pushed by provincial, especially Quebec, disquiet,and by a series of embarrassing media revelations ofunlawful if not scandalous RCMP activities, the fed-eral government was forced reluctantly to appoint aspecial commission of inquiry into actions of theRCMP not authorized by law. The terms of referencefor the McDonald Commission noted that “publicsupport” for the RCMP’s national security operationswas “dependent on trust in the policies and proce-dures governing its activities.” The maintenance ofthat trust required a full investigation of the extent ofunlawful activities and recommendations by the com-missioners on the necessity and desirability of leg-islative and institutional changes to the governanceof national security.29

McDonald CommissionIn 1981, the McDonald Commission recommended anew institutional architecture to achieve a greater

ciently protect the rights of private individuals in anyinvestigations which are made under existing proce-dures”25 — in short, to ascertain both the efficacy andthe propriety of security operations.

The Mackenzie Commission reported in 1969. While itwas grounded in a somewhat uncritical Cold War mind-set, the commission did make the first official recom-mendation for a formal accountability mechanism forthe Security Service: a Security Review Board nominatedby the governor-in-council, but “independent of anygovernment department or agency.” The board’s mainjob would have been to hear appeals from public ser-vants, immigrants and citizenship applicants deniedsecurity clearance. The board would also have receivedperiodic reports from the head of the Security Serviceand would have had “authority to draw to the attentionof the Prime Minister any matter it considers appropri-ate,” a clear indication that Mackenzie consideredaccountability only in relation to the executive. No refer-ence was made to accountability to Parliament, thecourts or the public. Significantly, Mackenzie recom-mended that the Security Service be detached from theRCMP and reformed as a “new civilian non-policeagency...quite separate from the RCMP...without lawenforcement powers” (Royal Commission on Security1969, 109, 110, 105). The status of the Security Service asa branch of the police force was seen as an obstacle todeveloping accountability, in part due to concernsregarding “police independence.” The MackenzieCommission tried to avoid this problem by linking “civil-ianization” of the Security Service to an accountabilitysystem for a new body without law enforcement powers.Neither recommendation, however, was implemented atthe time, although the government did appoint JohnStarnes as the first civilian director of the RCMP SecurityService, a recommendation that Mackenzie had made.26

It seems that there was at this time insufficient publicand political pressure on government to force any radicalchange in national security practice.27 This first tentativeconsideration of change did, however, strike one notethat has continued down to today: usually only publicscandals and serious failures surrounding national secu-rity activities force government to consider accountabili-ty for propriety. The response is to initiate specialinquiries that make policy reform recommendations.

Crisis of the 1970s and 1980s: fromMcDonald to the CSIS ActThe decade and a half that followed the MackenzieCommission carried the scandal-inquiry-reformdynamic much further, ultimately leading to a major

addition, an Advisory Council on Security andIntelligence would assist the minister, cabinet andParliament in “assessing the legality, propriety, andeffectiveness” of the agency. Although lacking execu-tive powers, it would have an “investigating capacity,”and report its findings to the minister, and as well sub-mit annual reports to the parliamentary committee.There would also be a Security Appeals Tribunal toconsider appeals regarding security clearance decisions,with its advice provided to cabinet.

Judicial oversight and controlMcDonald uncovered evidence that the RCMP hadextensively employed intrusive surveillance techniques(“wiretaps”) not authorized by law.31 The commissionersrecommended that applications for intrusive surveil-lance be submitted to a judge of the Federal Court forspecific approval.

Parliament and publicImportantly, McDonald recommended that a joint par-liamentary committee on security and intelligenceshould be empowered to examine national securityactivities in camera and in secret. Although this would,to some degree, situate the parliamentarians “inside theloop,” McDonald saw this window as offering theopportunity for greater transparency. Ministers andparliamentarians should “endeavour to provide thepublic with all information possible about the securityof Canada, the threats to it and steps taken to counterthose threats.” A more informed public would be betterable to understand national security issues(Commission of Inquiry concerning Certain Activities ofthe Royal Canadian Mounted Police 1981, 843).

Ironically, while this recommendation for a parlia-mentary committee would be ignored, Parliament actu-ally played a key role in the implementation of themain thrust of the McDonald plan for national securityreform. Consequently, we now turn to a brief excursuson the role of Parliament in national security, a ratherambiguous if not convoluted story.

Parliament in the Canadian Westminster system The British North America Act of 1867 passed on to theParliament of Canada all those powers, privileges andimmunities that were enjoyed by the parliamentariansat Westminster, including the right to remake any law itchose, and the stipulation that Parliament is not boundby any law that does not specifically bind the Crown.32

While the privileges and immunities are still todayenjoyed by individual members of Canada’s Parliament,

degree of accountability and control over the RCMPSecurity Service. This was achieved by balancing thestate’s obligation to preserve civil liberties with its dutyto protect and enhance national security — a balancecaptured in the title of the commission’s second report,Freedom and Security under the Law. Its most signifi-cant recommendation was to separate the SecurityService from the RCMP and reconstitute it as a civilianagency without law enforcement powers. In thechanged political context of the time,30 McDonald’scivilianization proposal, unlike Mackenzie’s earliersuch recommendation, was implemented with the pas-sage of the Canadian Security Intelligence Service Actin 1984. The CSIS Act mandated several new account-ability procedures broadly inspired by McDonald, butits provisions occasionally departed — in some casessignificantly — from McDonald’s recommendations.

McDonald drew a clear distinction betweenaccountability as control and accountability as expla-nation, the former taking the form of internal gov-ernmental direction, the latter the form of external orindependent review. Both were to be grounded instatutory forms that would express the will ofParliament. The major elements of accountability forthe proposed new civilian agency were as follows(Farson 1991b, 155-85).

Internal controlsWhile overall security policy and priorities were theresponsibility of the cabinet, and while the “special”responsibilities of the prime minister in overseeingnational security were recognized, McDonald affirmedthat the solicitor general should be the minister direct-ly responsible for the Security Service. The deputysolicitor general would be the minister’s deputy inrespect to all aspects of direction and control of theagency. McDonald insisted accountability must beensured by an effective system of communications,within the agency and between the agency and thedeputy solicitor general, “to ensure that the Minister isinformed of all those activities which raise questions oflegality or propriety” (Commission of InquiryConcerning Certain Activities of the Royal CanadianMounted Police 1981, 842). The commissioners alsorecommended an effective system of financial controlby the Treasury Board and the auditor general.

External reviewMcDonald was concerned that a joint parliamentarycommittee on security and intelligence should be ableto examine the activities of the agency in camera. In

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where the Privy Council Office played a lead role inmany dimensions. When coupled with the require-ments of secrecy that these functions of governmentdemanded, they would clearly prove to pose uniqueproblems for parliamentary scrutiny. In addition, theadoption of the Canadian Bill of Rights had placed anew emphasis on the rights of individual citizens.While this meant new responsibilities for the ministerof justice, who was required to ensure that all legisla-tion was in accordance with the Act, it also impliedthe need for additional bodies to scrutinize particularaspects of government from the perspective of thepublic interest and to handle public complaints. Tothis end various ombuds-like offices were establishedto consider such matters as official languages, humanrights, privacy, access to information and public com-plaints against the RCMP (Farson 2000, 225-58).

In 1982, Canada continued its progress towardbecoming a full-fledged “constitutional democracy”when it patriated its constitution from Britain. Withthe entrenchment of the Charter of Rights andFreedoms as a central piece of this document,Parliament now found its supremacy less absolute inthe federal sphere than hitherto. In the years that fol-lowed, certain legislation adopted by Parliament wouldbe struck down for being unconstitutional. Similarly,regulations developed as a consequence of suchenabling legislation would have to be even more close-ly scrutinized, both before promulgation by the execu-tive branch and various independent bodies — such asthe Office of the Privacy Commissioner — and subse-quently by the Joint Committee of Parliament on theScrutiny of Regulations. And its work as a scrutinizerof government action was augmented by review bodiessometimes depicted as parliamentary “surrogates.”

Parliament and national securityPrior to the CSIS Act of 1984, the introduction ofnew or restructured components of Canada’s intelli-gence community had been handled by executiveorder without involving Parliament.33 Such matters asdid come before Parliament were generally givenshort shrift (Franks 1980). As a consequence, the vastmajority of parliamentarians knew little aboutCanada’s secret world and had scant expertise in thisimportant aspect of governance. Furthermore, despitetheir efforts during the 1970s to pose questions aboutthe impropriety of RCMP Security Service activities,they were often rebuffed, being told either that mat-ters could not be discussed publicly for reasons ofnational security or that matters were sub judice.34

the powers rest with Parliament as a whole, not withindividual members, and must routinely be delegatedto committees. Two are of particular importance whenit comes to making the government of the dayaccount for its actions and to effecting control overgovernment action. The power under Standing Order108 to call for “persons, papers and records,” evenwhen its use is only threatened, is an invaluable andpowerful investigatory tool that, when backstopped bythe capacity to hold individuals in contempt for non-compliance and the requirement to testify under oath,is crucial to the process of political accountability.Similarly, the expenditure of public funds cannot becontinued without the formal consent of Parliament.Thus, by withholding such approval, or even raisingthe threat, Parliament retains a measure of controlover government policies and programs.

During the first hundred years or so of its exis-tence, Canada developed a variety of instrumentsfrom which governments could choose to investigate,inquire into, review, make transparent and generallyscrutinize its policies, practices and administrativeprocedures. Among these tools were departmentaland interdepartmental studies, task forces, regulatoryand advisory agencies, parliamentary committees andcommissions of inquiry, each with various subsets.These instruments varied considerably in their inves-tigatory capacities and powers, their independencefrom the executive branch, their capacity to makethings publicly transparent and their ability to holdpeople responsible for their actions, to effect reformsand to sanction wrongdoing.

By the middle of the twentieth century, Canadiangovernment had expanded considerably and hadbecome much more complex. To meet such new com-plexities, the organization of parliamentary businessmore and more reflected the departmental structureof the executive branch of government, especially interms of committee work. The responsibility of indi-vidual standing committees to monitor and reviewgovernmental activities would normally work well aslong as departmental responsibilities were entirelydiscrete and each committee’s remit did not overlapwith that of others. However, the normal committeestructure would prove less effective where policiesand programs tended to run across the gamut of gov-ernment and be led and coordinated by a centralagency, such as the Privy Council Office. The admin-istration of security and intelligence matters consti-tuted one such area of government, whereresponsibilities crossed departmental structures and

quent changes of membership of Commons committeesand the overwork of many MPs, its suggestion thatMPs could not be trusted either to protect the classifiedinformation or to keep their proceedings confidentialbegged for more detailed thought concerning alterna-tive options and procedures. So too did its view that aparliamentary committee would have similar powers tothe Security Intelligence Review Committee (SIRC). TheMcDonald Commission, for example, had not onlyenvisaged a complementary role — not an alternativeone — to SIRC regarding CSIS, but had foreseen theneed for a parliamentary committee that would havehad a much broader remit, one that would haveencompassed the role of the various members of theintelligence community as a whole. In addition, therewas no discussion concerning the possible benefits thata parliamentary committee might bring to the table,such as the capacity to bring resource deficiencies tothe attention of the executive, to speak publicly onbehalf of an intelligence agency when wronglymaligned in the press or to develop a knowledge baseand degree of expertise for future ministers.

The special committee’s concerns over partisanshipalso needed to be examined in more detail. While it istrue that some committees demonstrate a high degreeof partisanship, it would be wrong to assume that allcommittees do. Furthermore, there are often good rea-sons why such partisanship is exhibited, not the leastbecause there are often genuine political differences asto how to proceed with policy initiatives. Unfortu-nately, senior bureaucrats sometimes become the tar-gets of such partisanship, especially when committeemembers do not receive detailed responses toquestions.35 In part, this arises from a lack of clarity asto where the line should be drawn between policy, amatter for which ministers alone have responsibility,and administration, an area about which bureaucratscan respond to committees. There are also examples ofcommittees working very harmoniously. Here the worka committee conducts in private, which is frequentlyless evident and often less accessible than that of theexecutive branch (the latter being subject to the Accessto Information Act while private parliamentary com-mittee business is not), is as important as its publichearings. Such was the case with the 1989-90 House ofCommons Special Committee on the Review of theCSIS Act and Security Offences Act, discussed below.Neither in its public hearings nor in its private meet-ings was there discord. On only one issue was a votetaken. Several reasons might explain such relations.Perhaps most important, the committee was established

The first occasion on which the Canadian Parliamentprovided any detailed study of national security matterswas over the CSIS Act. The way in which the govern-ment introduced the legislation was unusual. Instead oftabling it in the House of Commons, the governmentsent its bill to the Senate, where a special committee,consisting of only Liberal and Progressive Conservativemembers, was established to consider it. Also surprisingwas the choice of the person to head the committee.Immediately before becoming a senator, MichaelPitfield had been the cabinet secretary, Canada’s mostsenior civil servant. It had been under his watch thatthe recommendations of the McDonald Commissionhad been evaluated and the legislation drafted. If thegovernment anticipated a free ride, it was mistaken,because the draft bill came up against considerable crit-icism in the Senate. As a result, the governmentallowed the Bill to die and introduced a new one incor-porating most of the Senate’s recommendations.Though it was debated at length in the Commons,where New Democratic Party members opposed itstrenuously, no significant amendments were subse-quently accepted by the government.

It is important to note that the Senate’s reportexpressed a particularly negative view aboutParliament’s capacity to play a major role in thescrutiny of Canada’s intelligence community. On thispoint, it stated a view that would find the support ofgovernment for at least 20 years:

It has been submitted to the Committee thatthe operations of CSIS should be subject tothe scrutiny of a special parliamentary com-mittee which would have much the samepowers as the SIRC. The McDonaldCommission also recommended the estab-lishment of such a committee. We agree that,ideally, such a committee would be of bene-fit. But there are many practical difficultiesinvolved. A parliamentary committee inmany respects would likely duplicate SIRC’sefforts. Further parliamentary committees arenotoriously subject to the vagaries of time,changes in membership and overwork. Thereis also the problem of maintaining the secu-rity of information. This has the possibilityof partisan motivations in some members,but it also refers to the general question ofwhether that type of committee can maintainthe requisite confidentiality by reason of thenature of its proceedings. In view of theseconsiderations, the Committee believes itwould not be advisable to establish a parlia-mentary committee with special access toCSIS operations and information. (SenateSpecial Committee on the Canadian SecurityIntelligence Service 1983, 31-2)

While the special committee was correct in point-ing to the difficulties of time management, the fre-

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Implementing McDonald: the CSIS Act andthe Security Offences ActThe immediate reaction of the government toMcDonald’s recommendations was not encouraging.An official riposte was prepared challenging a num-ber of points in the report. In the longer run, howev-er, McDonald did have a decisive impact on nationalsecurity accountability, although not always directly.We have already described the role of the PitfieldCommittee in amending the legislation that waspassed into law in 1984 as the Canadian SecurityIntelligence Service Act, creating the new civiliansecurity intelligence agency, CSIS. The new agencywas to be made accountable in numerous ways thatits RCMP predecessor was not, but the new proce-dures did not always follow McDonald’s guidelines.In the passage from McDonald to the CSIS Act, somechanges were added and new byways taken; somerecommendations disappeared completely (Farson1991b, 157-88).

The most central element in the accountabilityframework for CSIS lay in the legislation itself.Unlike its predecessor, CSIS has a statutory mandate.The McDonald Commission had been highly criticalof the absence of a legislative mandate for the RCMPSecurity Service. Following the commission’s report,the CSIS Act itself was to be the bedrock of account-ability for the new agency, spelling out in statutoryform the agency’s fundamental mandate, its powersand the limits on its powers, as well as the institu-tional framework in which it was to operate andreport. CSIS is empowered to collect, analyze andretain information and intelligence “respecting activi-ties that may on reasonable grounds be suspected ofconstituting threats to the security of Canada” andprovide threat assessments to the federal governmentor, by approved arrangement, to the provinces, for-eign governments or international organizations (sec-tions 12 and 13). Threats to the security of Canadaare defined in section 2:

(a) espionage or sabotage that is againstCanada or is detrimental to the interests ofCanada or activities directed toward or insupport of such espionage or sabotage,(b) foreign influenced activities within orrelating to Canada that are detrimental to theinterests of Canada and are clandestine ordeceptive or involve a threat to any person,(c) activities within or relating to Canadadirected toward or in support of the threat oruse of acts of serious violence against per-sons or property for the purpose of achievinga political, religious or ideological objectivewithin Canada or a foreign state,38 and

by statute with a specific mandate and time frame.Thus, committee members took their responsibilitiesvery seriously, missing few meetings. Significantly,the committee had a very experienced chair, who hadpreviously chaired both a standing committee andspecial statutory reviews. The committee also hadmore staff than most parliamentary committees.36

Left out of the Senate special committee’s equationwas the potential negative impact of not havingParliament directly involved in the process of politi-cal accountability. During the passage of the legisla-tion, the government had positioned SIRC as a“surrogate for Parliament.” Such a claim was, at best,only partly true. To be sure, having a quasi-inde-pendent body to conduct reviews of CSIS would behelpful insofar as it could comment on the propriety(and to a lesser extent the efficacy) of the organiza-tion, and its reports, once eventually tabled inParliament by the responsible minister, would providean accounting of the agency. However, the fact thatParliament would neither have access to the mattersunderpinning the reports nor be able to receivedetailed answers from SIRC effectively diminished itscapacity to hold the government ministers properly toaccount, especially regarding important politicalquestions.37 Thus, SIRC has not been, and cannot be,a true surrogate for Parliament where accountabilityis concerned. Both independent review and thecapacity to call the responsible minister to accountare necessary. As Franks argued in 1980:

Parliament’s ability to serve as a usefulwatchdog over security matters depends, asin other matters, on the effectiveness of theflow of information. The secrecy involved inmatters of state greatly restricts this flow.Faced with a claim by government thatinformation must remain secret because it is“not in the public interest (or national inter-est)” to reveal it (i.e. for reasons of state),Parliament has few tools, apart from persist-ent nagging, to cast doubt on the claim.Parliament cannot, for example, questioncivil servants to discover whether ministersare telling the truth, or are concealing infor-mation. Nor can Parliament or its committeesobtain copies of reports or papers which aminister refuses to release. As long as it is inorder, any answer, or none at all, is anacceptable ministerial response to a question,both on the floor of the House and in com-mittee. With all these obstacles, it is difficultfor Parliament to distinguish between a justi-fied secrecy for worthwhile reasons of stateor less justifiable secrecy to avoid embarrass-ment to the government or bureaucracy, thatis, for reasons of office. (20-1)

practice, concerned the establishment of an additionalset of “eyes and ears on the Service” through the officeof the inspector general (IG) of CSIS.

Judicial controls over intrusive surveillance methods(except for human sources) were adopted in the Act,with rules imposed on CSIS for making applications tothe Federal Court for warrants for interception of com-munications.

In terms of external review, financial audits by theauditor general were not enshrined in legislation,although this idea was followed up in practice morethan a decade later. The two proposed independentexternal review bodies were merged into one body, theSecurity Intelligence Review Committee, an institutionexhibiting some significant differences from the modelsproposed by McDonald.39

The most significant divergence from McDonald wasthe decision not to follow up on the recommendationregarding a joint parliamentary committee to examinesecurity and intelligence issues in camera. Instead, asSolicitor General Robert Kaplan said several times dur-ing the debates over the CSIS Act in the House ofCommons, SIRC was supposed to be a “surrogate forParliament.” There was, however, a statutory provisionfor a five-year parliamentary review of the Act, as wellas an indication that the mandated annual report ofSIRC should be tabled in both houses of Parliamentafter being examined first by the minister. Apart fromthese two exceptions, the legislation remains silent onthe role of Parliament.

Law enforcement versus security intelligenceA crucial feature of the CSIS Act is that all of theaccountability elements are uniquely institution-specif-ic. That is to say, not all the various national securityfunctions of the Canadian government are providedwith systems of accountability, only those exercised byCSIS. But CSIS was not, and is not, the only depart-ment or agency of government involved in nationalsecurity activities. We believe that institution-specificreview bodies represent a potentially crucial weaknesswhere there is an overlap in function, as they wouldhave to rely on the good nature of other parties, notthe law, to scrutinize such practices in detail.

The CSIS Act was passed in tandem with theSecurity Offences Act. The latter legislation authorizesthe attorney general of Canada to conduct proceedingsin respect to any criminal offence arising out of con-duct constituting a threat to the security of Canadawithin the meaning of the CSIS Act. The RCMP is des-ignated as the criminal law enforcement agency

(d) activities directed toward undermining bycovert unlawful acts, or directed toward orintended ultimately to lead to the destructionor overthrow by violence of, the constitu-tionally established system of government inCanada,but does not include lawful advocacy, protestor dissent, unless carried on in conjunctionwith any of the activities referred to in para-graphs (a) to (d).

CSIS is thus provided with a descriptive list ofactivities it may legitimately target, and those it maynot. Espionage, sabotage, terrorism and other formsof political violence and clandestine foreign-influ-enced activities detrimental to Canadian interests areall relatively noncontroversial as threats to security.The inclusion of activities described in 2(d) — ineffect, the controversial concept of “subversive”activities — has led to demands that this definition beremoved or modified, especially after 1987, when thesolicitor general, following recommendations madeinitially by SIRC and subsequently by the Inde-pendent Advisory Committee, directed that theCounter-Subversion Branch of CSIS be disbanded,with retained files distributed to more appropriateoperational branches or dispersed to the archives(SIRC 1989, 1). The line between activities describedin 2(d) and “lawful advocacy, protest or dissent”might not always be easy to draw in practice. It isclear, however, that the definitions of legitimate andillegitimate targets have had important consequencesfor the accountability of CSIS, providing a legal base-line for judging the appropriateness of the agency’stargeting. Drawing on the defined threats in the CSISAct, the agency has for some years indicated that itdoes not target threats to national unity, such as thelawful forms of the Quebec sovereignty movement,unless it has reason to believe they are being carriedout in conjunction with activities described in sec-tions 2(a) to (d).

With regard to internal controls, the ministerialand administrative lines of responsibility suggestedby McDonald were largely followed. Significantly, thehead of the service was expressly made responsiblefor its control and management under the “directionof the Minister.” However, two steps were taken tomake the minister and the incumbent’s deputy moreaware of the service’s activities. One was an obliga-tion on the part of the director to consult broadlywith the deputy minister. This included any matterdesignated by ministerial directive for consultation,as well as all operational policies and warrant appli-cations (sections 6 and 7). The other, following US

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security service operations. The best-known iterationof this argument came from Prime Minister PierreTrudeau in 1977:

I have attempted to make it quite clear thatthe policy of this government, and I believethe previous governments in this country,has been that they…should be kept in igno-rance of the day to day operations of thepolice force and even of the security force. Irepeat that this is not a view that is held byall democracies but it is our view and it isone we stand by. Therefore in this particularcase it is not a matter of pleading ignoranceas an excuse. It is a matter of stating as aprinciple that the particular minister of theday should not have a right to know whatthe police are doing constantly in theirinvestigative practices, what they are lookingat, and what they are looking for, and theway in which they are doing it…That is ourposition. It is not one of pleading ignoranceto defend the government. It is one of keep-ing the government’s nose out of the opera-tions of the police at whatever level ofgovernment. (Edwards 1980, 94)

Trudeau’s position was quite unsatisfactory withregard to accountability for national security, what-ever the validity of the rationale for police independ-ence for criminal law enforcement. The CSIS Actresponded to this concern in part by assigning statu-tory responsibility for CSIS to the solicitor general(now the minister of public safety).41

Ministerial control: the inspector generalMinisterial oversight of CSIS is further strengthenedby the office of the inspector general. The IG was notpart of the McDonald Commission’s recommenda-tions. The IG is appointed by the governor-in-counciland is responsible to the deputy minister of publicsafety. The IG monitors compliance by CSIS with itsoperational policies, reviews operational activitiesand is to have unimpeded access to any informationunder the control of CSIS that the IG deems necessaryfor the discharge of his or her responsibilities. The IGsubmits certificates to the minister pursuant to peri-odic reports on the operational activities of CSIS pre-pared by the director for the minister. The CSIS Actstates that these certificates attest to the extent towhich the IG “is satisfied with the director’s report”and to whether, in his or her opinion, CSIS activitiesare in compliance with the Act and with ministerialdirectives. The certificates also state the IG’s opinionas to whether there was any “unreasonable or unnec-essary exercise by the Service of any of its powers”(sections 30-33). Although these reports and certifi-cates are transmitted to SIRC, there is no provisionfor their tabling in Parliament or any form of

responsible for investigating such offences. Despitethe creation of CSIS as a civilian security intelligenceagency, the RCMP thus never vacated the field ofcriminal law enforcement with regard to nationalsecurity offences. This assignment of roles was ofcourse necessary since CSIS was deliberately notgiven any law enforcement powers. However, noaccountability was assigned to the RCMP with regardto its national security activities under either theCSIS Act or the Security Offences Act. In 1985, revi-sions to the Royal Canadian Mounted Police Actcalled for a public complaints process, which wasestablished in 1988.40 The Commission for PublicComplaints against the RCMP (known as the CPC)was constituted to investigate citizen complaintsabout RCMP criminal law enforcement, not nationalsecurity activities. As later indicated by the MaherArar inquiry and the testimony of two successive CPCchairs (see below), the CPC has proved inadequate inproviding accountability in this area.

The Pitfield Committee had laid particular stresson the differences between security intelligence andlaw enforcement, and on the “severe consequences ona person’s life” that security investigations couldhave: “Thus the question of control and accountabili-ty becomes important, because there is no impartialadjudication by a third party of the appropriatenessof an investigation. Since it is so open-ended andconfidential in nature, security intelligence workrequires a close and thorough system of control,direction and review, in which political responsibilityplays a large part. Such close direction is at odds withtraditional Canadian notions of law enforcement”(Senate Special Committee on the Canadian SecurityIntelligence Service 1983, 6).

The key to understanding accountability in theCSIS Act lies in the separation of the security servicefrom the RCMP with its law enforcement role.Parliament, the Senate committee and the McDonaldCommission before them all proceeded on the basisthat accountability, both as control and as review(explanation), was incompatible with the principle ofpolice independence and with an arm’s-length rela-tionship between the executive and law enforcement.

Directly related to this issue of police indepen-dence was one of the most significant problems iden-tified by the McDonald Commission: the lack of clearministerial responsibility for the activities of theRCMP Security Service. Ministers of the Crown hadindicated repeatedly that the principle of police inde-pendence compelled them to remain in ignorance of

more than one year, although application may be madefor renewal. Warrant applications are heard only byspecially designated judges of the Federal Court. Suchhearings are held in a secure courtroom and in camera.To expedite the process, at least one designated judge ison duty at all times to hear applications. In contrast toCriminal Code wiretaps, there is no subsequent obliga-tion to reveal that a target has been the subject of anintrusive investigation.

Early in CSIS’s institutional history, in 1987, a war-rant application containing incorrect information led tothe resignation of the first CSIS director and to thecompromising of a case against conspirators planningto assassinate a visiting minister of a foreign govern-ment (Cleroux 1990, 184-9).46 Following that, and inpart in response to earlier suggestions from SIRC onstrengthening the warrant application process, CSIS hasconstructed elaborate, multi-step internal controlmechanisms for approval of applications.47 This has ledone observer to suggest that the main impact of thejudicial control of surveillance applications may actu-ally lie in the internalization of the control processwithin CSIS (Leigh 1996, 173). Very few warrants arenow rejected. This may well be due to the fact that theprior internal process, including ministerial approvaland scrutiny by Department of Justice lawyers, weedsout poor warrant applications before they are submittedto the court.

It should be noted that the role of judicial oversightin national security is by no means limited to the con-trol mechanism of warrant approval under the CSISAct. The judiciary also plays an important role in inter-preting national security statutes, ruling on the consti-tutionality of legislative provisions, assessing thefairness of hearing procedures and considering the rea-sonableness of security certificates under theImmigration and Refugee Protection Act48 and theappropriateness of applications regarding the publicdisclosure of evidence under the Canada Evidence Act.Judges have also played a crucial role as commission-ers of public inquiries into national security activities,and one review office, the commissioner of theCommunications Security Establishment Canada,according to statute, must be headed by a supernumer-ary or retired justice.

External review: the Security Intelligence ReviewCommitteeSIRC is constituted as a committee consisting of a chair andbetween two and four other members.49 All members of thecommittee must be privy councillors not serving in

publication, although most have subsequently beendeclassified in redacted form in response to access-to-information requests.42

The office of the IG is conceived strictly as con-tributing to executive control by enhancing ministe-rial responsibility. It does this by serving as anindependent set of internal “eyes and ears” on theactivities of CSIS for the minister and by providingassurance. While this assurance plays a crucial role inensuring compliance, it also covers certain matters ofefficacy, particularly by identifying gaps in CSIS’slegislative and policy framework. Because the IGoperates within the machinery of government, find-ing the right balance between cooperation, on theone hand, and independence, on the other, is notalways easy. The IG may also be tasked by SIRC toconduct a review of specific activities of CSIS.43

The history of relations between the IG, CSIS andthe minister has been mixed, with strains sometimesclearly evident.44 Although the IG is supposed to haveaccess to all relevant documentation, “cabinet confi-dences” may be withheld. This could be a significantlimitation, as the government treats cabinet commu-nications to CSIS, crucially including ministerialdirectives, as falling into this category. However, anumber of ministerial directives and guidelines toCSIS have been made public, in whole or in part, viareleases under the Access to Information Act andSIRC reports. Those dealing with the handling ofhuman sources — not covered by judicial controlsover technical surveillance — and the targeting of so-called “sensitive” institutions, such as universitiesand religious organizations, suggest that fairly strictguidelines are imposed on CSIS actions.45

Judicial oversight and internal controlSections 21 to 28 of the CSIS Act specify the condi-tions by which the service may apply for judicialwarrants that authorize the interception of communi-cations, the installation of surreptitious surveillancedevices, the entering of private premises and thesearch and seizure of documents, records, informa-tion or any other thing. Such applications must bemade in writing and accompanied by an affidavit offact indicating reasonable grounds for believing thatthe target may constitute a threat to security asdefined in the Act, and that other, less intrusivemethods of investigation are likely to prove inade-quate. The target, including the person or persons, theplace and the information or things sought, must bespecified. Warrants are also limited in duration, no

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SIRC submits annual reports to the minister, whoin turn tables them in Parliament. These reports maybe redacted by the minister to protect national securi-ty and personal privacy. The annual reports, availableon the SIRC website, cover both the committee’sreview and complaint investigation functions. Section40 of the CSIS Act authorizes SIRC to conductreviews, or to direct CSIS or the IG to conductreviews, to ensure that the activities of the service arecarried out in accordance with the Act, regulationsand ministerial directions, and that the activities “donot involve any unreasonable or unnecessary exerciseby the Service of any of its powers.” SIRC may thustask the IG to review particular matters, or “where itconsiders that a review by the Service or theInspector General would be inappropriate, conductsuch a review itself.” In addition, section 54 of theCSIS Act provides that SIRC may, on request by theminister or at any other time, furnish the ministerwith a special report concerning any matter thatrelates to the performance of its duties and functions.From 1984 through 2006, SIRC has made 39 section54 reports. These may include inquiries into particu-lar allegations, or they may be more systemic innature. Reference to them is normally made in theannual reports.53 However, by the time such reportsare tabled, the events covered have sometimesoccurred as much as 18 months previously and havelost their news value and capacity to gainParliament’s attention.

SIRC develops an annual research plan on a selec-tive basis since it lacks the resources to review allpotentially relevant matters. Each annual report typi-cally includes a regional office review and an audit ofa security liaison officer (SLO) post abroad, with fur-ther topics selected for in-depth inquiries. In selectingtopics, SIRC looks to factors such as the internationalthreat environment, issues arising from complaints,government policy changes with implications forCSIS operations, SIRC’s public undertakings to lookinto particular matters and SIRC’s statutory obliga-tions. In conducting these in-depth inquiries, SIRCtypically reviews all relevant CSIS documents andfiles, electronic and in hard copy. These include tar-geting authorizations, warrants with supporting doc-umentation, operational reports, human source logs,internal CSIS correspondence and records ofexchanges of information with other agencies anddepartments including, where relevant, internationalagencies. SIRC may also conduct interviews and fieldinvestigations. CSIS makes a separate office with

Parliament.50 They are chosen by the prime minister after“consultation” with the leader of the opposition and theleaders of each recognized party in the House ofCommons. The implication of this consultation, neveractually spelled out, is that the membership of SIRCbroadly reflects the partisan makeup of the House, thussupposedly substituting for the representative role of theparliamentary committee unsuccessfully recommendedby the McDonald Commission. There has never been anyformal recognition of this putative principle. Furthermore,any semblance of mirror representation of Parliament hasnot been the practice since the Bloc Québécois becamethe official opposition in the 1993 election, as its mem-bers have refused to take the privy councillor’s oath andto swear allegiance to the Queen of Canada.51

As sworn privy councillors, the members of SIRCare in effect considered to meet the same securityrequirements applicable to CSIS officers; according tothe CSIS Act, SIRC employees must be vetted andtake an oath of secrecy (section 37). SIRC, whichadheres to the government security policy and thusworks in a secure environment, is entitled to have fullaccess to all information it requires from CSIS andthe IG, save cabinet confidences (section 39).52

SIRC is mandated to “review generally” the per-formance by CSIS of its duties and functions, includ-ing reviewing the reports of the CSIS director and thecertificates of the IG; reviewing directions issued bythe minister to CSIS; reviewing any arrangementsmade by CSIS with provincial governments, depart-ments or agencies and police forces; monitoring intel-ligence sharing that stems from such arrangements;reviewing CSIS arrangements with foreign govern-ments, departments and agencies and with interna-tional organizations and monitoring internationalintelligence; reviewing reports of unlawful behaviourby CSIS employees; monitoring requests made by theminister of national defence or the minister of foreignaffairs for assistance in the collection of foreign intel-ligence within Canada; reviewing regulations underthe Act; and compiling and analyzing statistics onCSIS operational activities (section 38). Since itsinception in 1984, SIRC has prepared some 178 reviewreports, of which about 40 have resulted from arequest by the minister under section 54 of the CSISAct. Most of these reports have been released inredacted form under the Access to Information Act. Itshould be noted, however, that the practice of minis-ters requesting such reports has declined since theearly years of CSIS, with less than 25 percent of allrequests having been made since 1996.

intelligence abroad as well as in Canada, so long as theintelligence was related to threats to the security ofCanada as specified in the Act. On this basis, CSIS hasacknowledged its growing role as an intelligence col-lector outside Canada since 9/11. While this is not pre-cisely a foreign intelligence role similar to thatperformed by the US Central Intelligence Agency orBritain’s Secret Intelligence Service, in that political,economic or military intelligence that does not relate tothreats to Canadian security or Canadian interestswould fall outside the CSIS ambit, this expanded inter-national role is one that challenges existing accounta-bility procedures in terms of both propriety andefficacy. The current IG, for example, has suggestedthat CSIS lacks a suitable framework for its operationsin Afghanistan. The Federal Court’s rejection of a CSISwarrant application that would have permitted its per-sonnel to follow suspected Canadian citizens tounidentified countries and then to intercept their com-munications, on grounds that the court had no authori-ty to endorse such a warrant, further exemplifiesshortcomings in the law and oversight procedures(Freeze 2008).

The Afghan theatre is also the locus of operationsfor other national security organizations. John Adams,the current chief of the CSEC, has publicly acknowl-edged that his agency is operating there. To these mustbe added the operations of the military’s new HUMINT(human intelligence) unit and the much expanded JTF2(Joint Task Force 2), the rules of engagement of whichare not known (Akkad 2008).55 Although all militarypersonnel are subject to the Code of Service Discipline,the only unit within Canada’s military that is subject toindependent oversight would appear to be its militarypolice. During the 1990s, two special advisory groups,headed by former chief justice Brian Dickson, had rec-ommended improving the military justice system. Thereport of the Létourneau Commission into the tortureand killing of a Somali teenager was more damning,pointing to a failure of leadership and a lack ofaccountability in the Canadian Armed Forces and afailure of Parliament to scrutinize them adequately orto engage in policy development (Commission ofInquiry into the Deployment of Canadian Forces toSomalia 1997). The government responded by disband-ing Canada’s elite Airborne Regiment and by establish-ing the Military Police Complaints Commission inDecember 1999. This is a quasi-judicial, independentcivilian agency that now examines complaints aboutthe conduct of members of the military police in per-forming their policing activities or about interference

computers available at CSIS headquarters in Ottawafor the exclusive use of SIRC staff. Parliament, itshould be noted, has no ongoing way of knowinghow thorough these reviews are or whether they useacceptable research practices.

Targeting reviewWithin CSIS, the Target Approval Review Committee(TARC) is the senior operational committee chargedwith considering and approving applications by CSISofficers to launch investigations.54 SIRC reviews tar-geting authorizations made by TARC to ensure com-pliance with the CSIS Act, ministerial directions andrelevant operational policies. SIRC examines whetherCSIS had reasonable grounds to suspect a threat tothe security of Canada in seeking its targetingapproval, whether the level and intrusiveness of theinvestigation were proportionate to the seriousnessand imminence of the threat, whether the service col-lected only that information strictly necessary toadvise the government of a threat, whether CSISrespected the rights and civil liberties of individualsand groups, and whether any information wasexchanged with other agencies (SIRC 2003, 14-16).On occasion, SIRC has indicated concerns aboutaspects of targeting and conveyed advice to CSIS onchanges in procedure.

Foreign intelligenceUnder section 16 of the CSIS Act, the minister of for-eign affairs or the minister of national defence mayask CSIS to collect intelligence in Canada concerningthe “capabilities, intentions or activities” of a foreignstate. SIRC annually reviews all ministerial requestsfor section 16 operations to ensure compliance withthe Act, as well as compliance with a memorandumof understanding to the effect that any request mustcontain an explicit prohibition against targetingCanadians, permanent residents and Canadian corpo-rations, and that the request should indicate whetherthe proposed activity is likely to involve Canadians(SIRC 1998, 53). SIRC reviews section 16 operationson a randomly selected audit basis and has identifiederrors. CSIS requests to the Communications SecurityEstablishment Canada (CSEC) for access to thatagency’s communication intercepts are routinelyscrutinized by SIRC to ensure that they comply withexisting law and policy.

Former CSIS director Ward Elcock has publiclystated on several occasions that his interpretation ofsection 12 of the CSIS Act permitted CSIS to collect

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ComplaintsSIRC has a mandate to investigate two categories ofcomplaints pursuant to sections 41 and 42 of theCSIS Act: complaints made with respect to “any actor thing done by the Service” and complaints relatingto the denial of security clearances for federal gov-ernment employees or prospective employees, as wellas for federal government contractors. SIRC also hasa mandate to conduct investigations in relation todenials of citizenship applications on security orcriminal grounds by the minister of immigration.57

From its inception to March 2005, SIRC received883 complaints and produced 118 written reports fol-lowing investigations of complaints, involving eitherwritten or oral hearings (Commission of Inquiry intothe Actions of Canadian Officials in Relation toMaher Arar 2006b, 174-5).58 In hearings, special pro-cedures are designed to balance procedural fairnesswith national security concerns.59 According to theCSIS Act, when investigating a complaint concerningthe denial of security clearance, SIRC sends a state-ment to the complainant summarizing such informa-tion available to SIRC “as will enable the complainantto be as fully informed as possible of the circum-stances giving rise to the denial of the security clear-ance” (section 46). Investigations of complaints areconducted in camera. SIRC has the power to summonwitnesses, to compel documents to be produced andto administer oaths. The complainant, CSIS and rele-vant departments are all given the right to make rep-resentations to SIRC, to present evidence and to berepresented by counsel. The Act provides, however,that “no one is entitled as of right to be present dur-ing, to have access to, or to comment on representa-tions made…by any other person” (sections 50 and48[2]). SIRC’s Rules of Procedure provide for discre-tionary disclosure of evidence and representations toparties, subject to section 37 of the Act, but state thatit is within the discretion of the member conductingthe investigation, in “balancing the requirements ofpreventing threats to the security of Canada and pro-viding fairness to the person affected,” to disclose therepresentations of the parties to one another (SIRC2005). In the case of an ex parte hearing (where par-ties are excluded), SIRC counsel will cross-examinewitnesses. As one commentator notes: “Since com-mittee counsel has the requisite security clearanceand has had the opportunity to review files notavailable to the complainant’s counsel, he or she isalso able to explore issues and particulars that wouldbe unknown to the complainant’s counsel” (Rankin

in or obstruction of their investigations. Since 9/11,there has been no clear evidence that any of Canada’snational security agencies have been involved ineither torture56 or extraordinary rendition, mattersthat have tarnished their American counterparts andthat have largely escaped oversight in the US.Recently, concern has been expressed about the treat-ment Canadian-captured Taliban fighters havereceived after being handed over to Afghan authori-ties (“New Case of Afghan Prisoner Abuse” 2007).

Foreign intelligence sharingSIRC reviews written arrangements for cooperationwith foreign intelligence services, to ensure compli-ance with the CSIS Act and with ministerial directivesand conditions for approval. SIRC has also examinedthe human rights record of host countries, and hasflagged relationships where CSIS should be vigilantin ensuring that no intelligence transferred to a for-eign agency results in human rights abuses. SIRC alsoexamines the substance of information exchangedunder any given foreign arrangement during thecourse of its regular reviews of SLO posts abroad.

WarrantsSIRC annually reviews the use of Federal Court warrantsby CSIS. In its 2001-02 annual report, SIRC stated:

Warrants are one of the most powerful andintrusive tools in the hands of any depart-ment or agency of the Government ofCanada. For this reason alone, their use bearscontinued scrutiny, which task theCommittee takes very seriously. In addition,our review of the Service’s handling of war-rants provides insights into the entirebreadth of its investigative activities and isan important indicator of the Service’s viewof its priorities.

SIRC’s examination of the warrant process coverssuch matters as warrant acquisition, warrant imple-mentation and applicable court decisions and regula-tions. In addition, it produces warrant statistics. Inreviewing the obtaining of a warrant, SIRC examinesall documents relating to how the warrant applica-tions were prepared, including the affidavits and sup-porting documentation, working files relating to theaffidavit, the requests for targeting authority and theTARC minutes. In reviewing this documentation, SIRCseeks to ascertain whether the affidavits are factuallycorrect and adequately supported in the documenta-tion and include all pertinent information, andwhether the affidavits are complete and balanced,with the facts and circumstances of the cases fully,fairly and objectively expressed (SIRC 2002, 21).

tioned, a process to which SIRC contributed through itscritical reviews of the service’s operations, leading in1987 to the closing of the Counter-Subversion Branchof CSIS on ministerial order.62

Counterterrorism became a leading concern as well,especially after the Air India bombing in 1985 took thelives of 329 people, the vast majority of themCanadians. The failure to prevent that attack, the short-comings of the investigation (criminal proceedingsbegan only in 2003 and have yet to result in any con-victions for direct responsibility) and evidence of lackof cooperation between CSIS and the RCMP all con-tributed to increased demands for greater accountabili-ty. In 2005-06, two special investigations of the AirIndia affair were called; the second was a full-scalejudicial inquiry under a retired Supreme Court justice,63

indicating a serious lack of satisfaction with the levelof accountability produced by the SIRC/CSIS processtwo decades earlier.

The decade of the 1990s was a transition to a post-Cold War era. With the collapse of the Communist blocand the dissolution of the Soviet Union, the old ColdWar paradigm disappeared; but in this decade there wasno clear successor paradigm to replace the old one.Government economy measures were being extended toencompass security and intelligence as well as otherfunctions, and CSIS found its budget under constraint atthe same time as it had to redefine its role in a changingthreat environment. In 1994, SIRC was called upon toundertake a major public accounting of a scandal thatbeset CSIS. The “Heritage Front affair” involved thenaming in the media of a CSIS source within anextreme right-wing organization and a series of ques-tions that arose from this revelation. The report of asection 54 special investigation was made public, with afew parts removed on security grounds (SIRC 1994).

The third period was dramatically initiated by theterrorist attacks of September 11, 2001, on New Yorkand Washington, DC, and the declaration by the USgovernment of a “war on terrorism” in which Canadahas become a participant. New powers to combat ter-rorism were passed by Parliament and new resourcesinvested. CSIS has stepped up its security intelligencecollection capacity abroad (Freeze 2006). Other agen-cies, including the RCMP and the CSEC, have becomemore active in anti-terrorist activities. Domestically, anew umbrella department of government, Public SafetyCanada, has been created to direct the security andintelligence functions of government. And the firstofficial National Security Policy has been published(Farson and Whitaker 2008).

1990). When a party is excluded from a hearing forreasons of national security, he or she may be provid-ed with the substance of the evidence given or repre-sentations made, although this is discretionary. TheSupreme Court of Canada60 has held that the rulesrecognize and strike a fair balance between the com-peting interests of the individual in fair procedures,and the state’s interest in effectively conductingnational security and criminal intelligence investiga-tions and in protecting police sources (ArarCommission 2006a, 275-6).

SIRC is limited in its powers to making findingsand recommendations. In this regard, the SupremeCourt has held that its recommendations are notbinding on the government.61

The McDonald Commission had recommended thecreation of a separate Security Appeals Tribunal,presided over by a Federal Court judge, to hearappeals relating to immigration, citizenship and secu-rity clearances (Commission of Inquiry ConcerningCertain Activities of the Royal Canadian MountedPolice 1981, 1:421-6, 2:805-11). McDonald saw thistribunal as a quasi-judicial body. “Given the adversar-ial nature of proceedings before the tribunal, and theneed for the tribunal to function as much as possiblelike a Court, we think it should be quite separate fromthe Advisory Council on Security and Intelligencewhich will have a broad mandate to review and advisethe government on all aspects of security and intelli-gence policy and operations” (2:883). In the CSIS Act,however, review and complaints are combined in thesame body. Combining the two functions in one bodydoes offer certain advantages from the point of viewof accountability. SIRC insists that it gains a morecomprehensive understanding of CSIS operations thanwould be possible if it were limited to review alone(Leigh 1996, 160).

SIRC and CSIS: evolution of the review processSince 1984, the relationship between SIRC and CSISand the nature of the accountability process haveevolved with experience. The context within whichboth the agency and its review body operate hasundergone some dramatic changes.

The first half decade following the CSIS Act fellwithin the continuing context of the Cold War. Thecontinuing assumption was that the main securitythreat to Canada came from the Communist bloc.Counter-espionage was a leading priority for CSIS.Counter-subversion — a priority throughout the earli-er Cold War period — was increasingly being ques-

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There is a public perception problem: SIRC’s effec-tiveness is difficult to assess given the degree to whichmost of its review activities are necessarily shroudedin secrecy, or semi-secrecy. Stripped of nondisclosableinformation, its annual reports provide only limitedpublic enlightenment and rarely attract much mediaattention. Occasional special section 54 reports maycover topics of public concern, but are usually entirelyor mostly classified, with only occasional glimpsescoming to light via access-to-information requests.Some observers have suggested that SIRC’s mainimpact may be found in the internal procedures and“culture” of CSIS, reflecting an internalization of someof the norms of accountability that SIRC hasadvanced, and in the ability of CSIS to avoid pitfallsand usually stay out of trouble, partly as a result ofexternal review of its operations (Gill 1989).66

The five-year review of the CSIS Act andSecurity Offences ActThe only parliamentary function that the CSIS Actand Security Offences Act envisaged was the estab-lishment of a special committee in 1989 to review thetwo acts after they had been in operation for fiveyears.67 For this purpose, Parliament was given oneyear to complete its task. Though this committee wasrequired by statute to conduct a “comprehensivereview of the provisions and operation [of the twoActs],” the special committee soon found itself facingnumerous roadblocks that ultimately prevented itfrom fulfilling its legal obligations within the timeavailable. Significantly, it found it impossible toobtain access to particular people, papers andrecords.68 Furthermore, its “surrogate” would notspeak freely about what underpinned its variousreports and what its recommendations to the ministerhad been. Despite these difficulties, it was able todetermine that at least one of SIRC’s reports was seri-ously flawed methodologically, a point on whichSIRC subsequently concurred (Farson 1995, 185-212).Because it was denied access to key records and wasunable to determine whether the flawed SIRC reportwas typical or atypical, Parliament was unable todetermine whether the various requirements of thelegislation were being met, particularly those aspectsconcerning accountability, control and review.

Most of the special committee’s recommendationswere dismissed without explanation.69 In three areas,however, it had modest success. The first concernedthe decision by the government to require the directorof CSIS to provide a public version of the CSIS annual

Since 9/11, there has been one serious scandalassociated with the conduct of security intelligence,the Maher Arar affair, that brought in its wake amajor commission of inquiry that has made impor-tant recommendations for overhauling the entireregime of accountability with regard to nationalsecurity activities (see below for more about thesepolicy recommendations, to which the governmenthas not yet responded). Though the commission ofinquiry was ostensibly charged with establishing anenhanced review system for the RCMP, it also recom-mended bringing several agencies not hitherto for-mally scrutinized under an independent externalreview body. Two other public inquiries were alsoestablished. One, the Internal Inquiry into the Actionsof Canadian Officials in Relation to AbdullahAlmalki, Ahmad Abou-Elmaati and MuayyedNureddin, under Frank Iacobucci, was similar innature to the Arar Commission but conducted its pro-ceedings in private and its terms of reference did notrequire policy recommendations. The other, the com-mission of inquiry into the Air India bombing underJohn Major, has yet to report and may well have rec-ommendations with serious implications for account-ability in the future.

Institutionally, SIRC has moved over the two and ahalf decades of its existence from an early period ofrelatively aggressive behaviour in establishing itselfin relation to CSIS and defining its role (under theleadership of SIRC’s first chair, Ronald Atkey, from1984 to 1989), to a period of contraction and flux inthe early 1990s, to a period in which the review com-mittee seems to have settled into a relatively stableinstitutionalized relationship with its subject agency.CSIS today speaks publicly in generally supportiveterms of its review body, while SIRC underlines thegood working relationship that it has established withCSIS. While this may seem to signal a positive inter-pretation of effective accountability, some criticsargue that too cozy a relationship suggests a reviewbody “captured” by the agency it is supposed to scru-tinize but on which it is dependent for its informa-tion.64 There is perhaps a certain inevitability over thelong term for reviewer and reviewed to grow morecomfortable with each other, just as the history ofregulation suggests a tendency for the regulator andthe regulated to become ever more accommodative ofeach other. There are definite dangers in this, butSIRC has not lost its capacity to focus public atten-tion on CSIS shortcomings, as it has continued to doin recent years.65

arguably Canada’s most secret intelligence agency, theCommunications Security Establishment Canada (Rosen1993). As Canada’s primary electronic eavesdroppingagency, the CSEC (called the Communications SecurityEstablishment, or CSE, until September 2007) collectsforeign intelligence through technical rather thanhuman sources. It intercepts, decrypts, retains and ana-lyzes foreign communications in support of Canadiandefence and foreign policy, and offers protection serv-ices for electronic information and communicationwithin the government of Canada. It also providestechnical and operational assistance to federal lawenforcement and security agencies under their respec-tive warrant processes.

The CSEC began during the Second World War andcontinued into peacetime as the CommunicationsBranch, National Research Council (CBNRC). After itsexistence was exposed by the media in 1975, theCBNRC was transferred to the Department of NationalDefence and renamed the Communications SecurityEstablishment through a series of rather innocuousorders-in-council.71 From its origins, the agency’sbudget was deliberately hidden, and indeed its veryexistence was an official but poorly kept secret until1983, when public acknowledgement was made by thegovernment during the debate on the CSIS Act (SenateSpecial Committee on the Canadian SecurityIntelligence Service 1983, 18-19, 23, 31-3).72

In 1990, the special committee that conductedParliament’s five-year review of the CSIS Act recom-mended that the CSE be given a statutory basis as wellas a review mechanism (House of Commons SpecialCommittee on the Review of the Canadian SecurityIntelligence Act and the Security Offences Act 1990,153). The privacy commissioner and the auditorgeneral73 subsequently reiterated these concerns aboutthe lack of a statutory mandate.

The review system was achieved in an unusual waywhen Derek Lee, a former member of the five-yearreview committee and then the chair of theSubcommittee on National Security, placed a motion onthe order paper. Amid public criticism of the lack oftransparency in CSE operations and media allegationsof wrongdoing, the government eventually acted butnot through Parliament. Though the special committeehad recommended extending SIRC’s mandate to includethe CSE, it chose instead to create a new office: com-missioner of the CSE. The government’s method wasthrough an order-in-council, which again avoided anydiscussion in Parliament of the mandate of either theCSE or the commissioner until the debate over the Anti-

report. Second, and perhaps not surprisingly, the spe-cial committee recommended the establishment of aparliamentary committee that would have broad andguaranteed access to the secret world and its reviewbodies. Though the government ignored this recom-mendation, as it had a similar one by McDonald,Parliament took up its fallback position and estab-lished the Subcommittee on National Security of whatwas then the Standing Committee on Justice and theSolicitor General. The idea was to produce the leastthreatening type of committee to look at a broadrange of national security issues.70 Variations of thiscommittee have been established in subsequentParliaments. Few have taken up the items that thespecial committee thought should form part of itsworkplan. Their impact on the policies and proceduresof the broader intelligence remit have remained limit-ed, sometimes even failing to consider the annualreports of SIRC and the director of CSIS. In part, thiswas due to the broadening of party representation inthe House of Commons in the 1990s from three tofive. Significantly, one of these new entities was theBloc Québécois, a party that wanted independencefrom Canada for Quebec. Given that it at one pointbecame the official opposition, this raised difficultquestions if Parliament was to be deeply engaged inoverseeing Canada’s security and intelligence commu-nity. In its most recent incarnation, the national secu-rity subcommittee has tended to morph into asubcommittee of the whole Justice committee that hasnot confined itself to national security matters.

Perhaps the special committee’s most importantimpact concerned something not found among itsrecommendations. Staff of the special committeewere authorized in 1990 to strike an agreement withthe Office of the Auditor General for the latter toconsider the work of Canada’s security and intelli-gence community. Though work did not begin until1996, largely because of the amount of discussionneeded to reach an agreement with the governmenton what would be considered and how security pro-cedures would be maintained, the OAG has sincebecome an important player in the review of the effi-cacy of Canada’s security and intelligence communi-ty, focusing its attention on at least one organizationor a particular practice in each of its recent annualreports.

The office of the CSE commissioner Another idea that did eventually come to fruitionconcerned the establishment of a form of review for

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lish whether these remain either appropriate or ade-quate, particularly in light of a continuously changingthreat environment and rapid advances in communica-tions technology. Significantly, there is no mandate toestablish whether the CSEC operates efficaciously.79

When the government sought to rush through itsomnibus anti-terrorism legislation immediately after9/11, Parliament was forced to focus its attention onthe most immediately worrisome parts of the legisla-tion. Consequently, it had little opportunity to con-sider the role of the CSEC, what the mandate of thecommissioner should be or how that office mightreport to Parliament. A comparison between thisstudy’s handling of the CSEC’s mandate and that ofCSIS when the CSIS Act was adopted in 1983-84(particularly regarding such matters as the durationof the study; the number, type and region of thecountry of witnesses heard; and the briefs considered)is instructive. Despite the fact that the CSEC isarguably just as secretive and as potentially intrusiveinto individual privacy as CSIS, the CSEC experiencepales by comparison. Other important attributes ofthe legislation were also given short shrift.

The impact of the CSE commissioner’s work hasbeen mixed. On the positive side are the numerousrecommendations accepted by government. Writing inhis 2005-06 annual report, the commissioner stated:

Of almost 100 recommendations made by theCSE Commissioner, 75 percent were acceptedby CSE and have either been fully imple-mented or are at various stages of beingimplemented. Half of the remaining recom-mendations were accepted with some modifi-cations or are very recent and are still beingconsidered by CSE. The remainder wereeither bypassed by events or, in a few cases,not accepted by CSE.80

The office’s impact on the public and parliamentarypractice has, however, been extremely limited. In largepart, this has been due to the rather innocuous natureof its public reports, especially in its early years.Perhaps for this reason, only one commissioner hasbeen called to testify on the office’s annual reports,which have also garnered scant media attention.81

Senate committeesAn examination of the work of the Senate on mattersof national security since the establishment of CSISsuggests that its committees have been far more robustthan committees of the Commons in scrutinizing thework of Canada’s secret world, despite not having theright to have their reports responded to within a setperiod by the government. They have produced many

terrorism Act in 2001. Significantly, this gave thecommissioner of the CSE all the powers providedunder part II of the Inquiries Act. Thus, unlike SIRCand the IG, which have the right of access to informa-tion and personnel, the commissioner has subpoenapowers. These provide the incumbent with guaranteedand immediate access to both personnel and recordsof the agency, and the authority to require persons togive evidence under oath. The CSE commissioner’smandate was originally “to review the activities of the[CSE] to determine whether those activities are incompliance with the law,”74 including the CriminalCode, the Charter of Rights and Freedoms, the PrivacyAct or any other relevant legislation (and, mostimportant, since 2001, the mandate itself). An annualreport must be submitted to the minister of nationaldefence with an unclassified version to be tabled inParliament. The commissioner may also submit classi-fied reports to the minister when the commissionerconsiders it advisable.75 Crucially, the order-in-councildid not provide a statutory mandate for the agency, aserious omission regularly underlined by the CSEcommissioner himself in his annual reports.76 In 1999,the commissioner’s mandate was extended to encom-pass a complaints function. Thus, citizens may filecomplaints about the lawfulness of CSEC activitieswith the Office of the Commissioner. A ComplaintsReview Committee then recommends whether furtherinvestigation is required. The commissioner mustinform a complainant of the results of an investiga-tion, while not disclosing any classified information.

In 2001, the commissioner’s mandate was finallyformalized under the Anti-terrorism Act and expand-ed to authorize the interception of private communi-cations of Canadians under certain specifiedconditions.77 The commissioner is now directed toreview activities carried out under such ministerialauthorizations to ensure that they are in compliancewith the conditions of the authorization, and toreport any findings in the annual reports. In thisregard, it is important to note that both the currentcommissioner and his predecessors believe that thecurrent legislation “lacks clarity and ought to beamended.”78 Any CSEC activity that the commissionerdiscovers that does not comply with the law must bereported to the minister and the attorney general.

In our view, the commissioner’s mandate is insuffi-cient in that it deals only with certain aspects of propri-ety. While there is a requirement to certify that theagency has complied with law, regulations and policy,there is no specific forward-looking obligation to estab-

tion and systematic program review following the endof the Cold War, the OAG initiated the first audit ofOttawa’s security and intelligence functions as a whole.This report, which was to become the first of a regularcycle and specifically focused on control and accounta-bility across the intelligence community, was unprece-dented in scope. The US Government AccountabilityOffice has audited specific programs, but never theentire field of intelligence.82 The OAG was highly spe-cific in recommendations for tightening controls andmodifications to address indicated weaknesses.

In recent years, reports from the OAG have attractedincreasing public attention, and governments appear tobe under more pressure than in the past to respondpositively to shortcomings revealed by the audits. TheOAG is specifically mandated to examine financial con-trols, cost-effectiveness of government operations andstandards of public service ethics in handling the tax-payers’ dollars. These are important factors to considerin national security accountability, and the OAG isqualified to carry out such reviews, particularly givenits practice of revisiting programs with a view to estab-lishing whether improvements have been made.

In 2003, the OAG released a report specificallydirected at gaps in the extent and nature of the exter-nal review of Canada’s security and intelligence agen-cies, and in the disclosure of findings. The OAGassessed the level of external independent review overeach agency involved either directly or in providingassistance with the collection of intelligence withinCanada, including CSIS, the RCMP, National Defence,the CSEC, the Canada Revenue Agency (CRA) and theFinancial Transactions and Reports Analysis Centre ofCanada (FinTRAC). The OAG concluded that powers toreview security and intelligence agencies vary widely.83

With respect to the Canadian Forces, the CRA andFinTRAC, the OAG noted that the organizations do nothave a specific agency that independently reviewscompliance with law and ministerial direction.84 Withrespect to the RCMP, the OAG concluded that theCommission for Public Complaints against the RCMPdoes not have the same level of access to RCMP infor-mation as the inspector general and SIRC have to CSISinformation. Just as review agency mandates vary, sotoo do the reporting and disclosure of findings toParliament. The OAG recommended that the govern-ment should assess the level of review in reporting toParliament for security and intelligence agencies toensure that agencies exercising intrusive powers aresubject to levels of external review and disclosure pro-portionate to the level of intrusion.85

more substantive reports than their counterparts in theHouse. This is true of both Senate special committeesand Senate standing committees. Noteworthy amongthe former are the two committees dealing with terror-ism in the 1980s that were chaired by Senator WilliamKelly and his Committee on Security and Intelligence ofthe late 1990s. Similarly, the Senate’s StandingCommittee on National Security and Defence, chairedby Senator Colin Kenny, has been particularly active inthis regard, providing some 16 substantive reports since2002. And whereas the work of the House has on bal-ance tilted toward matters of propriety, the Senate’scommittees have been more broad-brush and havetended to be more interested in matters of efficacy, par-ticularly concerning the capacities of the various mem-bers of Canada’s national security apparatus and theirperformance. While one may sometimes disagree withthe style, the frequently alarmist tone and the approachtaken by the Kenny committee, and even with some ofits findings, one cannot dispute the fact that it has con-tinuously raised the profile of a wide spectrum of secu-rity concerns of national importance, something thatHouse committees have largely failed to do.

The office of the auditor generalOne of the most important bodies created during theperiod following Confederation, from Parliament’sperspective, was the Office of the Auditor General ofCanada. This body has been independent of the exec-utive branch since its establishment in 1878. The vastmajority of review bodies — even those said to beindependent — keep to the convention of ministerialresponsibility by reporting to the responsible minister,who then tables their annual reports in Parliament. Instark contrast, the auditor general’s reports arereferred directly to the Public Accounts Committee,one of only a few committees to be chaired by amember of the official opposition. Besides conductingcomprehensive audits of individual departments andagencies, it also conducts value-for-money audits ofspecific programs and government-wide issues. Ittherefore can provide invaluable insights for membersof Parliament regarding the efficacy and finances ofgovernment organizations.

Although the McDonald Commission made briefreference to the desirability of ensuring financialaccountability for national security through the OAG,the CSIS Act made no specific provision for suchfinancial audits. However, in the mid-1990s, at theurging of the special committee that had reviewed theCSIS Act, in the context of federal expenditure reduc-

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were being put under surveillance, either becausethey were members of a targeted group or becausethey had come into contact with someone who wasalready under surveillance. Instead of choosingbetween CSIS and the advice of its review agency, thesolicitor general appointed a task force headed by aretired senior public servant, Gordon Osbaldeston, toinvestigate the problems experienced by the newlycivilianized security service. Osbaldeston’s advice,which was made public, coincided with that of SIRCand the inclinations of the solicitor general, butadded independent legitimation (IndependentAdvisory Team on the Canadian Security IntelligenceService 1987; Gill 1989). Few independent reviewbodies have been as successful: the vast majority ofits recommendations were accepted. Furthermore, theCounter-Subversion Branch was ordered closed, animportant step in the evolution of CSIS.

More recently, other forms of review have beeninitiated in the aftermath of 9/11. Since the passageof the Anti-terrorism Act, the government has experi-mented with a form of quasi-nongovernmentaladvice on its national security policies. Two advisorypanels made up of nongovernmental people havebeen created to meet on a regular basis to review pol-icy and performance. The National Advisory Councilon National Security (modelled to a degree on the USpresident’s Intelligence Advisory Board) consists of apanel of independent experts on security and intelli-gence. The Cross Cultural Round Table on Securitydraws on representatives of Canada’s various culturalcommunities to provide government with minorityexperiences and perspectives — in practice, no doubt,with special attention to the Muslim and Arab com-munities that are most affected by the current coun-terterrorist emphasis in national security. It is tooearly to know what impact these bodies have had.

The enactment by Parliament in 2002 of theCanadian Air Transport Security Authority Act estab-lished CATSA as a Crown corporation. The legisla-tion’s principal purpose was to provide an improvedand standardized mode of screening at Canadian air-ports of air passengers and their checked luggage andon-board belongings before they travelled withinCanada or abroad. Another major initiative was thescreening of non-passengers at Canadian airports.Since its inception, CATSA has undergone two majorreviews. The first was conducted by the OAG. Thesecond concerned a review of the legislation itself.Instead of following the normal practice of havingthe statute reviewed by Parliament, the Act provided

Recent reviews by the OAG include a critical audit ofthe effectiveness of the anti-terrorism initiatives after9/11, which received wide publicity in and outsideParliament.86 In April 2005, the OAG reported on a wide-ranging and critical review of the Canadian AirTransport Security Authority, the Crown corporationresponsible for airport screening. In this context, AuditorGeneral Sheila Fraser specifically commented on thechallenges Parliament faced in holding the governmentto account for security and intelligence matters, particu-larly where the mandates of a number of governmentdepartments and agencies overlap. While she acknowl-edged that key information had to be kept secret, theAuditor General observed that Parliament also needed tobe able to scrutinize the spending and performance ofsecurity and intelligence activities. In her view, it neededto receive reports containing classified information fromsecurity and intelligence agencies as well as organiza-tions such as her office that are charged with scrutinizingsuch agencies on Parliament’s behalf.87

Ad hoc review formsApart from the permanent institutional devices wehave been describing, national security activitieshave also called into being a number of ad hoc orone-time-only efforts at review or assessment. Mostnotably, the various public inquiries called by succes-sive governments over the years are key players inshaping and developing accountability systems. Butthe quest by governments for advice in this area hasnot been limited to public inquiries. In the 1980s,under the Progressive Conservative government, twonational security issues precipitated serious internalreviews. The first was the tragic bombing of Air IndiaFlight 182 on June 23, 1985, which constituted thelargest mass murder in Canadian history and themost deadly attack involving an aircraft anywhereprior to 2001. While strenuously resisting a publicinquiry and discouraging both SIRC and Parliamentfrom considering the matter, supposedly to avoidjeopardizing the RCMP’s criminal investigation, thegovernment tasked the Interdepartmental Committeeon Security and Intelligence under a senior publicservant, Blair Seaborn, to undertake a review of avia-tion security. Focusing strictly on efficacy issues, hisreport (Seaborn 1985) is believed to have played animportant role in shaping the aviation securityregime for the next decade and a half.88

The second review arose out of strong criticism bySIRC of the Cold War-style Counter-SubversionBranch in CSIS. Apparently, too many Canadians

In this regard, the task force believed that the separationof the Commission for Public Complaints from theExternal Review Committee, which deals with internalmatters of discipline and complaints from RCMP mem-bers about their working conditions and so on, wasinadequate, with neither body having sufficient authori-ty to compel real action. To rectify this situation, thetask force recommended the creation of an IndependentCommission for Complaints and Oversight of the RCMP.This body would be established by statute, have officialindependence and report publicly. It would have all theexisting functions but would have authorities consistentwith those of an ombudsman. It would have the powersto consider complaints, initiate investigations, summonwitnesses and compel testimony, with its recommenda-tions binding on the RCMP commissioner.90 Althoughthe government appointed its first civilian commissionershortly after the independent investigator’s report waspublished, it has yet to initiate responses to the taskforce’s recommendations. Moreover, some of the recom-mendations are at odds with those of the ArarCommission’s policy review, discussed in detail below,to which the government also has yet to respond.

Yet another form of ad hoc review was theIndependent Panel on Canada’s Future Role inAfghanistan, chaired by John Manley, which reported in2008. From the government’s point of view, this review,which was surprisingly silent on the role of intelligencein counter-insurgency, had the specific purpose of gain-ing a parliamentary majority for an extension of themilitary mission in Afghanistan, which was accom-plished with the support of the official opposition. TheManley report also contains some critical reflections onthe government’s performance. This latter element pointsto a structural problem with all such ad hoc reviews:after they are made public, there is no automatic orcompulsory requirement for government to respond tospecific recommendations or advice, or to provideanswers to why specific recommendations have beenrejected or ignored. This is often the case with publicinquiries, leading former commissioner John Gomery tocastigate the government for ignoring many of his rec-ommendations from his inquiry into the sponsorshipaffair. One answer to such concerns might be to establisha procedure whereby the government that calledinquiries or reviews would be under an obligation — not,of course, to accept all or any of the recommendations,but to provide an answer to Parliament on its responsewithin a specified period of time.

In 2005, Parliament adopted the Public ServantsDisclosure Protection Act to cover would-be whistle-

for a five-year review of the new agency’s mandateand performance by the minister. The governmentchose to conduct this review by appointing an inde-pendent advisory panel to the minister of transportwith a mandate to review not only CATSA but avia-tion security in Canada in general, and to report tothe Air India inquiry on the aviation security aspectsof that tragedy. The panel’s report was made to theminister, and then tabled in Parliament (AdvisoryPanel on the Review of the CATSA Act 2006).89 Thisreport and CATSA’s annual reports, which are publicdocuments but not specifically tabled in Parliament,have received limited attention by Parliament.

In April 2007, the government appointed an inde-pendent investigator to examine allegations of mis-management of the RCMP’s pension and insuranceplans. Ordinarily such a matter might have been ofrelatively minor importance. However, the investiga-tor’s June 2007 report, entitled A Matter of Trust,found broader problems that would have further ram-ifications. In investigator David Brown’s opinion, theRCMP’s management system was “horribly broken,”with a command-and-control culture that was exer-cised by an “autocratic leader” who punished whistle-blowers. Two factors were responsible for permittingthe RCMP’s paramilitary structure to go unchecked.These were “the absolute power of the Commissionerand the absence of meaningful oversight of his man-agement style.” Instead of making specific recom-mendations to resolve specific issues relating only tothe pension fund scandal, Brown recommended that atask force be struck to produce a major fix beforerank-and-file morale was sapped further (Clark 2007).The government responded by doing exactly that.

When the Task Force on Governance and CulturalChange in the RCMP reported at the end of the year, itmade three fundamental recommendations. First, theRCMP should be established as a separate entity fromgovernment with separate employer status, just as isthe case with CSIS. In this way, it would be able tomanage its financial affairs and human resourcesproperly. Second, because the task force believed theRCMP would need to build capacity at nearly everylevel within the force, a new civilian board of man-agement would be required to provide overall stew-ardship of the organization. This would includeoversight of financial affairs, personnel, property, pro-curement, resources and services. The board would beaccountable for the organization to the minister. Sucha level of independent responsibility needed to be bal-anced with increased accountability and transparency.

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The Post-Arar AccountabilityReform Agenda

I n the post-9/11 environment, a familiar rhythmhas returned once again to the evolution ofnational security accountability: a security scandal

has led to a special public inquiry, followed by a pro-posed reform agenda for an existing accountabilityregime that has been found wanting under pressure.Once again, the focus has been on propriety ratherthan on efficacy, or even on both considered together.The scandal was the “extraordinary rendition” ofMaher Arar, a Canadian citizen abducted by USauthorities while in transit at a New York airport andsent to Syria, where he was held in confinement andtortured before his release almost a year later. JusticeDennis O’Connor was eventually appointed to lead acommission of inquiry, known as the ArarCommission, into the facts surrounding the possiblecomplicity of Canadian officials. The inquiry’s terms ofreference included a second part that mandatedO’Connor:

(b) to make any recommendations that heconsiders advisable on an independent, arm’slength review mechanism for the activities ofthe Royal Canadian Mounted Police withrespect to national security based on (i) anexamination of models, both domestic andinternational, for that review mechanism,and (ii) an assessment of how the reviewmechanism would interact with existingreview mechanisms.92 (Commission ofInquiry into the Actions of CanadianOfficials in Relation to Maher Arar 2004)

Actions by the RCMP lay at the heart of eventsleading to Arar’s ordeal. As noted earlier, the RCMPhad entirely escaped accountability for its continuingnational security activities when CSIS was createdwith its new accountability regime. The RCMPCommission for Public Complaints, established afterthe CSIS Act, failed to meet the challenge of the Ararscandal. Arar offered an opportunity to expandaccountability to include for the first time a leadingplayer in Ottawa’s national security activities, onemade even more important by the Anti-terrorism Act,which had criminalized forms of behaviour previous-ly not subject to law enforcement and had made theRCMP a leading force in integrated anti-terroristinvestigations. O’Connor chose to interpret his man-date as calling for recommendations on nationalsecurity review across the entire institutional spec-trum, rather than exclusively focusing on the RCMP.Thus, O’Connor offered a system-wide reform of

blowers. It protects public sector employees from lia-bility that may result from disclosing informationabout wrongdoing. While most elements of the securi-ty and intelligence community are covered by this leg-islation, including review bodies, both CSIS and theCSEC are specifically exempted. They are, however,required to establish similar procedures for their specif-ic organizations. The CSE commissioner is also obligedunder the Security of Information Act to receive infor-mation from persons who are permanently bound tosecrecy should they wish to claim a “public interest”defence for divulging classified information.

A committee of Parliament or a committee ofparliamentarians?One of the Martin government’s initiatives was toaddress what it perceived as the “democratic deficit.”Among its recommendations to offset this deficiencywas a proposal to establish a parliamentary commit-tee to scrutinize Canada’s security and intelligencecommunity. A subsequent government policy paper,however, recommended instead a committee of par-liamentarians along British lines (Glees, Davies, andMorrison 2006). A committee of parliamentarians,although made up of MPs and senators, would not bea committee of Parliament capable of exercising tra-ditional parliamentary rights and privileges. It wouldbe established by statute, have its membershipappointed by the prime minister and exercise onlysuch powers as the statute stipulates. Furthermore, ifthe British model were followed, the committee wouldlikely have its staff drawn from the public service,not from the Library of Parliament’s Research Branch,a nonpartisan body independent of the executive.

The case for a committee of parliamentarians overa parliamentary committee rests on the belief thatbroader access to documents and people in govern-ment would be facilitated, that secrecy might be betterassured and that partisanship could be minimized. Thearguments in favour of a committee of Parliamentstress the importance of maintaining effective parlia-mentary scrutiny of the executive-dominated nationalsecurity field.91 We assess the alternatives in our con-cluding section of policy recommendations, below.

In any event, the Martin government fell before itsproposal could be implemented. The current govern-ment has indicated that it too would follow throughon appointing some form of committee. This promisehas yet to be met as the government contemplates awider range of current accountability recommenda-tions, discussed in the following section.

themselves form a relatively small proportion of itsoverall workload. This was of course the reasoningbehind the separation of the security service from theRCMP in 1984. The RCMP and the government haverecognized that the arm’s-length relationship regardingcriminal law enforcement cannot and should not bemaintained with regard to national security investiga-tions. Indeed, ministerial directives guide the RCMP inits conduct of national security investigations. Butexternal review of the RCMP’s national security activi-ties faces the problem of applying a mechanism createdwith one kind of activity in mind to an agency most ofwhose activities do not correspond with this focus andfollow a different set of rules with regard to relationswith government.

When O’Connor chose between review options, anon-starter was the status quo: that is, leaving theRCMP Commission for Public Complaints (CPC) inplace under current rules. This body had failed to dealwith the Arar affair, and the former chair of the CPCwas on the public record describing the existingprocess as dysfunctional (Sallot 2005; Shephard2005).94 If the CPC were to remain in place, it wouldhave to be beefed up with powers appropriate to anenlarged post-9/11 workload and shorn of the weak-nesses in the existing body. Other options would stillhave to address the issue of the integration of RCMPnational security activities with other agencies.

A “Super SIRC” option was discussed, in which SIRCwould be expanded beyond its institutional focus onCSIS to include the RCMP and other agencies engagedin national security operations. SIRC might be a modelthat, with appropriate additional resources andenlarged powers, could provide external review ofnational security operations on a functional, ratherthan institutional, basis. In effect, a “Super SIRC” couldreplace the CPC, perhaps replace the CSE commissionerand expand its review capacity to the national securityactivities of all government departments and agencieswith a national security footprint. This was the pre-ferred option of the outside experts consulted by theArar Commission, as well as of the public intervenorswho testified and presented written submissions. Thereason most often advanced for this preference wasimproved accountability for propriety, although thepotential of a more comprehensive spotlight on allnational security activities was also indicated.

Ultimately, O’Connor judged this option to be unrealis-tic. Despite its emphasis on integrated operations, thegovernment had not actually integrated the variousagencies engaged in national security into a single con-

national security review rather than a narrowly insti-tution-bound prescription, but one that did not con-sider a role for Parliament.

In pursuing a wider scope, O’Connor was address-ing a key new feature of national security activitiesin the post-9/11 environment: integration of anti-ter-rorist efforts — across federal agencies and depart-ments, across governments in Canada and acrossborders in joint activities with allies. Since the terror-ist threat is said to be borderless and globally net-worked, effective counterterrorist responses mustovercome traditional institutional and jurisdictional“stovepipes.” CIA-FBI conflict had contributed to theintelligence failure of 9/11, as the US 9/11Commission had found (National Commission onTerrorist Attacks upon the United States 2004). InCanada, turf wars between the RCMP and CSIS hadcontributed to the failures both to prevent the 1985Air India bombing and to prosecute the alleged per-petrators. These lessons were now being addressed bythe agencies charged with counterterrorism, and byan unprecedented (but perhaps still inadequate)degree of interagency cooperation.93 The new inves-tigative philosophy promises greater effectiveness butalso presents a problem in designing a new reviewsystem focused only on an RCMP that is increasinglyoperationally integrated in an institutional sense withother players in the process, including those at theprovincial and municipal levels and outside Canada.A distinct danger to avoid is the lowering of inves-tigative standards in criminal cases where prosecu-tion, not intelligence gathering, is the aim, whichmight be brought about by the possibility of informa-tion being derived from intelligence agencies operat-ing under different and lower investigative standards.

The Arar Commission also recognized that theRCMP was following a trend among law enforcementagencies throughout the Western world by adoptinga model of intelligence-led policing. In the area ofnational security, the RCMP would be expected toengage in intelligence gathering in close collabora-tion with other agencies, both domestic and foreign,that were primary intelligence producers. This makesdrawing clear lines of accountability focused alonginstitutional boundaries more problematic than inthe past.

The principle of police independence with regard tocriminal law enforcement, which continues to accountfor most of the RCMP’s time and resources, presentscertain difficulties in establishing greater accountabil-ity for the force’s national security activities, which

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national security that should be subject to review:Citizenship and Immigration Canada, TransportCanada, FinTRAC and Foreign Affairs would be des-ignated to have their national security activitiesreviewed by SIRC. The Canada Border ServicesAgency (CBSA), which exercises some law enforce-ment powers, would be reviewed by ICRA. Omittedfrom this list were the Privy Council Office (PCO) andits International Assessment Staff (IAS), which,though having no investigative or coercive powers,might have been included because their efficacy hassometimes been questioned.95

“Statutory gateways” among the national securityreview bodies would provide for exchange of infor-mation, referral of investigations, conduct of jointinvestigations and coordination in the preparation ofreports. A new body, the Integrated National SecurityReview Coordinating Committee (INSRCC), compris-ing the chairs of ICRA and SIRC and the CSE com-missioner, with an outside person to act as chair,would have a mandate that would include makingsure the statutory gateways operate effectively;avoiding duplicate reviews; providing a single intakesystem for complaints; reporting on accountabilityissues and trends in the area of national security inCanada, including the effects on human rights; con-ducting public information programs; and initiatingdiscussion for cooperative review with review bodiesfor provincial and municipal police involved innational security activities. Significantly, O’Connorrecommended that “an independent person” — notParliament — be appointed to review the new frame-work after a period of five years (Commission ofInquiry into the Actions of Canadian Officials inRelation to Maher Arar 2006b, 22).

In assessing O’Connor’s recommendations, it iscrucial to note that he explicitly foreclosed discussionof review for efficacy, in favour of a narrower focuson propriety alone, which he took to be his particularmandate. The Arar Commission falls into the familiarpattern of scandal eliciting reforms that focus moreon propriety (whether the agency acts in accordancewith law and ethical standards) but less on the effica-cy of the agency’s activities (whether its activities arein accord with the policy objectives of government).O’Connor interpreted his mandate as a review prima-rily for propriety: “It was concern about the proprietyof actions taken with respect to Maher Arar that gaverise to this Inquiry.” Thus, he did not conduct theinquiry “with the goal of making recommendationsabout the efficacy of the RCMP’s national security

solidation of CSIS, the RCMP, the CSE and other enti-ties, but was relying instead on improved mechanismsfor cooperation and communication between existingagencies while retaining their separate identities andmandates. As a result, it was thought that externalreview might be better designed if it mirrored theseinstitutional arrangements and permitted agency-spe-cific review bodies to learn with experience the organi-zational culture of the bodies they are reviewing.

The Arar Commission recommended a solutionthat marries the advantages of government-widereview of national security with the advantages of adedicated institutional focus. Keys to this compromiseinclude the concept of “statutory gateways” that per-mit a review body to follow a trail of evidence fromone institution to another, and an institutional inno-vation: a committee to coordinate the activities of theexisting review bodies and offer a single focus ofentry to the complaints process for the public.

The old Commission for Public Complaints againstthe RCMP would be significantly restructured as theIndependent Complaints and National Security ReviewAgency (ICRA). ICRA would have the ability to conductself-initiated reviews; investigate complaints; conductjoint reviews with SIRC and the CSE commissioner intointegrated operations; and conduct reviews upon min-isterial request. ICRA would have investigative powerssimilar to those under the Inquiries Act, including thepower to subpoena documents and compel testimony,initiate research and conduct public education pro-grams. Taking account of the principle of police inde-pendence, ICRA would also have the “power to stay aninvestigation or review because it will interfere with anongoing criminal investigation or prosecution”(Commission of Inquiry into the Actions of CanadianOfficials in Relation to Maher Arar 2006a, 539).

Complaints could still be referred to the RCMP forinvestigation, but a complainant could request thatICRA conduct the review itself. Both the complainantand the RCMP would have the opportunity to makerepresentations at hearings. In the case of nationalsecurity confidentiality, ICRA would have discretionto appoint security-cleared counsel independent ofthe government to test the need for confidentiality.

ICRA would issue a report annually to the minis-ter, a disclosable version of which would be laidbefore Parliament, and would also issue a report tothe minister on its self-initiated reviews and com-plaint investigations.

O’Connor identified five departments or agenciesof the federal government with significant roles in

stronger form of accountability, of which nationalsecurity review will be one part.

Another timely and important contribution is theemphasis on cross-institutional integration of nationalsecurity activities and the requirement for accountabilityto reach across narrow institutional boundaries. Whetherthe solutions offered by O’Connor constitute the bestpractices remains to be seen, but they are the only ideasyet on offer from any officially sanctioned inquiry. Therewere two after the Arar Commission: the IacobucciInternal Inquiry, which had no mandate to review policy,and the commission of inquiry into the 1985 Air Indiatragedy, which has yet to report, but in any event isfocused on the situation more than two decades ago.

There are a number of gaps and limitations in theArar Commission’s policy recommendations. For one,O’Connor interpreted his mandate as excluding consid-eration of a proposed national security committee ofparliamentarians or a standing committee ofParliament. The question of how the proposed changeswould fit with an expanded and enhanced parliamen-tary role is essential.

The failure to address review for efficacy has conse-quences. In recent years, some of the most crucial ques-tions that have required external independent reviewhave been precisely those of efficacy arising out of cata-strophic intelligence failures. For example, the 9/11attacks in the US caused the 9/11 Commission to focuson the inefficacy of US intelligence and to recommendreforms to address these serious deficiencies (NationalCommission on Terrorist Attacks upon the United States2004). In Canada, the Major Commission on the Air Indiatragedy is almost entirely focused on the efficacy ratherthan the propriety of Canadian national security. An ear-lier SIRC investigation into Air India was postponed atthe request of the government until it was no longertimely, a poor reflection on SIRC, as its first chair, RonAtkey, has subsequently admitted (Clark 2005).

Ironically, in the one place where O’Connor refers tothe proposed parliamentary committee, it is to suggestthat it might be a more appropriate venue for efficacyreviews, thus potentially tying together the two mostobvious pieces of unfinished business in his report(Commission of Inquiry into the Actions of CanadianOfficials in Relation to Maher Arar 2006b, 467). Thisoffers an appropriate place to move toward our conclu-sions on the state of accountability in national securityand our policy recommendations for the future. TheHarper Conservative government, which accepted unre-servedly all the recommendations of O’Connor’s factualinquiry and quickly set about acting upon them, has yet

activities, and I am therefore not in a position toevaluate whether an independent review mechanismis needed from this perspective.” He does go on toadmit that “issues of efficacy and propriety are inter-woven” and that “while efficacy will not be the pri-mary objective of the review mechanism Irecommend, it will in many cases be a necessary ele-ment of a robust review for propriety” (Commissionof Inquiry into the Actions of Canadian Officials inRelation to Maher Arar 2006b, 467).

This constitutes a serious shortcoming in the recom-mendations for new review procedures, in that thoseconceived by O’Connor apply only to matters of propri-ety. In this regard, the commission made a distinctionbetween review and oversight, terms it defined in a par-ticular way. To O’Connor, review meant examiningoperations after the fact, as opposed to oversight, whichhe interpreted as including a degree of involvement inongoing investigations. The latter course was rejected,for a variety of reasons, most convincingly because ofconcern about the reviewers becoming entangled in theevidentiary trail they are supposed to review. Review forpropriety is concerned with identifying illegal or unethi-cal actions and might thus be considered a quasi-judi-cial function. As such, it is important that those carryingout the review have no prior involvement in the mattersbeing reviewed. To take a hypothetical example: if areview body was regularly notified of ongoing surveil-lance targets, its capacity to impartially review a com-plaint regarding surveillance might be called intoquestion. Thus, almost all the review envisaged in theO’Connor report is ex post facto, with only minor excep-tions where some reference to continuing investigationsmay be unavoidable. While this may be appropriate forpropriety reviews, which demand a degree of quasi-judi-cial impartiality, it is unlikely that review for efficacywill be effective without some involvement by thereviewers at earlier stages in the process.

The extension of accountability to include thenational security activities of the RCMP is long over-due, and indeed should have formed part of the 1984reforms. It was always a fallacy to imagine that sepa-rating security intelligence from law enforcement andsubjecting only the former to effective accountabilitycould resolve the fundamental issues.96 In any event,rising demands for RCMP accountability in criminallaw enforcement have become irresistible. Theappointment of the first civilian commissioner, with amandate to impose greater transparency, and externalprobes into internal conflicts in the RCMP (as detailedabove) all point toward the imposition of some

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regular basis. Furthermore, when it comes to conduct-ing such scrutiny, review bodies may not in practice seeeverything the law suggests they should. Parliament,for example, has been prevented from seeing certainthings because it could not guarantee that they wouldremain secure. Similarly, SIRC has sometimes been pre-vented from seeing certain information because it origi-nated from a foreign intelligence service.

There are three key divides among the proceduresthat are in place. The first is between those proceduresthat operate outside the executive branch and thosethat operate inside it. The purpose of the latter appearsto have more to do with ensuring sound control andmanagement practices; those outside vary consider-ably in their strategic objectives. Some, such as thejudicial approval of warrants, are designed to ensurethat particular intelligence-gathering techniques fallwithin the law. Others are there to scrutinize particularpractices and to provide accounts to various politicalactors — officials within the executive branch, mem-bers of Parliament, other review bodies, the media andthe public at large. Still others investigate public com-plaints and make recommendations regarding policy.

Another important divide concerns propriety andefficacy. Some review bodies like the Office of the CSECommissioner have a statutory remit that looks onlyto the propriety of past actions. Some, such as SIRC,have a responsibility for both. A third group, whichwould include certain commissions of inquiry, haveexamined only efficacy issues. In all cases, whatappears to be missing is bodies that can examine mat-ters adequately before the fact. This applies to issuesof propriety, where review bodies are not explicitlyrequired under their mandates to evaluate on anannual basis whether the existing applicable laws areadequate. This is particularly important where changesin technology or agency mandates are concerned.

A final divide concerns institutions that are per-manent and those that are temporary. Most of theindependent external review bodies are now estab-lished by statute. There are exceptions, however, tothis general rule. The House of Commons Sub-committee on National Security could easily be dis-banded by its parent, the Standing Committee onJustice and Human Rights, or have its terms of refer-ence changed. Similarly, the approach of the Senate’sStanding Committee on National Security andDefence might easily change with a different chair.By comparison, most of the current internal account-ability mechanisms have been established throughpolicy initiatives rather than by statute. There are

to respond to the recommendations of the policyreview, or even to give any clear signal of its inten-tions. Therefore, the future shape of accountabilityremains open to policy advice.

What We Know about the CurrentSystem of Accountability

A t the beginning of this paper, we put forwarda series of questions about the nature of cur-rent accountability procedures, with a view to

establishing the degree to which they have madeCanada’s security and intelligence community under-standable, transparent and public. Below are somebrief assessments.

Alhough the accountability procedures are com-plex, we cannot talk about the existence of a systemor network of accountability procedures, for two mainreasons. First, there are poor linkages between manyof the key elements. While the lack of good connec-tions between Parliament and the various review bod-ies established by statute is most noticeable, the samedeficit has been evident in the past among reviewbodies themselves. Though Parliament has the legalauthority to call anybody to testify and to expecthonest answers, full responses to questions have notbeen the practice. Even when independent reviewbodies have come before Parliament, they have feltrestrained in their capacity to respond to questions inany really detailed way. Such was the case, for exam-ple, with SIRC at the time of the five-year review.Also, the Auditor General is on record as saying thatParliament must be able to receive classified informa-tion from her. In the case of SIRC and the IG, both ofwhich report initially to the minister, until recently thetiming of their annual reports often meant that theIG’s certificates were not considered by SIRC in timeto be included in SIRC’s report for the same year.While this problem appears to have been rectified, theaddition of new review and oversight bodies may pro-duce similar problems in the future.

Second, while some institutions are scrutinized byseveral different bodies, others either are scrutinized bya single institution or remain completely out of thespotlight. CSIS, for example, receives considerableattention from both SIRC and the IG. By comparison,the CSEC is reviewed by one body, once a year. Stillothers such as the IAS, most of National Defence andthe CBSA receive no external independent review on a

Given that there has been no external attempt since 1990to re-evaluate SIRC’s methodologies, it is impossible totell whether this was a mere aberration or somethingmore serious. Similarly, during the five-year reviewprocess, when faced with a special committee that tendedtoward recommending collapsing the role of the IG intoSIRC, the Minister impressed on the special committee theimportance of the work provided by the IG. Yet at leasttwo inspectors general subsequently ran into difficultiesfulfilling the office’s mandate, failing in this regard toreceive adequate support from their minister; at onepoint, the office was left vacant for over a year. It is thusdifficult to gauge whether a separate office really is nec-essary or whether subsequent incumbents have been co-opted by CSIS. In addition, the gap means that there is nobody that evaluates what has happened to all the recom-mendations that the various review bodies have made.True, each of them can revisit its recommendations insubsequent annual reports, but their capacity to effectchange, particularly where it relates to more than onenational security agency, is limited.

Many of the problems identified above might beresolved through a much greater parliamentary role. Butwe are under no illusions that this will be an easy matter.Parliament has its own organizational culture, one that atbest is ambivalent toward security and intelligence scruti-ny. As indicated, the conflicted role that parliamentariansperform — to support or oppose the government on theone hand, versus scrutinizing government activity on theother — is not necessarily conducive to the careful analy-sis of the secret world with a view to establishingwhether it operates both to protect national security andin the interests of all Canadians. To be sure, we canexpect most parliamentarians to deal with “fire alarms”but not necessarily to do the “police patrolling” type ofoversight that is necessary. But not all legislators are like-ly to approach their work from the same perspective. AsLoch Johnson has recently suggested, legislators mayapproach the scrutiny of intelligence from quite differentperspectives. He classifies them as “ostriches” (thosedemonstrating a benign neglect toward intelligence agen-cies); “cheerleaders” (those who act as “boosters” for theintelligence community); “lemon suckers” (those who areinherently skeptical of both intelligence practices and thevalue of intelligence); and finally “guardians” (individu-als who are both partners and critics of the intelligencecommunity). Furthermore, he posits that particular over-seers have fluctuated between these various identities(Johnson 2008). The trick, therefore, will be to find suffi-cient numbers of individuals who are consistently pre-pared to act as “guardians.”

also exceptions, the IG being one, to this general rule.Many of the accountability mechanisms that havebeen used are of a temporary nature. Commissions ofinquiry, task forces and independent panels, whichare all normally established by executive order, diewith the completion of their reports, as do statutoryreviews of legislation by parliamentary committees orthe work of special committees once completed.While Parliament may of course take up any matter itchooses, it seldom does go back over such completedwork, leaving it instead to be reviewed by others,sometimes by the auditor general where appropriate.This is unfortunate as the terms of reference of suchbodies are normally set by executive order and maynot be of the widest remit. Recent commissions ofinquiry suggest, in fact, that closer scrutiny needs tobe given to such terms of reference, not only for thebreadth of their obligations but also for how theyhave been interpreted.97 There is now only an obliga-tion on the part of the executive branch to respond toHouse of Commons committee reports within a settime. Arguably, there is a need to follow up all suchreports, as well as Senate committee reports, after areasonable period to establish how the governmenthas responded to their various recommendations.

We can also point to a fundamental gap in theoverall system. There is no single body outside theexecutive branch with the capacity or responsibilityto examine the whole security and intelligence com-munity for both its efficacy and propriety. Arguably,this is of crucial importance as there are a growingnumber of areas where many elements of the com-munity need to work together; the provision of secu-rity for the 2010 Olympic games in Vancouver-Whistler and support for Canadian Forces inAfghanistan are good examples. In such instances,there needs to be consistency of policy, coordinationof the analytical process and general collaborativeeffort. The OAG answers to this description best, butits purview extends only to the efficacy aspects oforganizations. Similarly, on the propriety side thereare several ombuds-like offices. But these deal onlywith very specific dimensions — human rights, priva-cy, access to information, official languages — oforganizations across government.

This gap in the overall system also means there is nobody that can evaluate whether all the various reviewbodies are working as their instigators intended. In fact,there have been clues in the past suggesting that allwas not well. The five-year review process found anexample of SIRC exhibiting poor research methods.

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Moreover, O’Connor has pointed in his recommenda-tions to the broader unfinished business of accounta-bility for propriety by calling for mechanisms thatbetter integrate review of national security opera-tions, which are increasingly integrated across juris-dictional lines, both within the federal governmentand between the federal and other governments.O’Connor’s recommendations for an enhanced andeffective RCMP complaints body, along with a systemof statutory gateways among the review bodies and anew Integrated National Security Review Coordi-nating Committee to direct traffic between the reviewbodies, are the best proposals on the table and shouldbe implemented by the government as part of itsexpected response to the second part of the ArarCommission report.

The unfinished business of review for propriety isimportant to keep in mind, but it is crucial that atten-tion to this relatively well-worn reform agenda notdistract attention from bigger pieces of unfinishedbusiness, two of which we would particularly singleout: the almost untouched matter of accountabilityfor efficacy; and the poorly answered question ofaccountability to whom, particularly to Parliament, aswell as to the executive branch.

The persistent emphasis on propriety has meant, notsurprisingly, that greater attention has been paid to thecollectors of intelligence — those on the sharp end ofthe process, with the capacity to intrude on civil socie-ty and intimidate and coerce. Perhaps as a conse-quence, several elements of the intelligencecommunity that do not participate in intelligence col-lection within Canada are not routinely considered.Examining for efficacy would require a much broaderremit covering the capacity and performance of allbodies with a role in national security and intelligence.

The concern over propriety has certainly been jus-tified, and will continue to be justified, by the verynature of national security activities. Yet proprietyissues, taken in isolation, can be misleading guides.The McDonald Commission was well aware of this.The famous and delicate balance to which McDonaldpointed was between freedom and security. Most ofthe problems that inquiry had to address were theresult of the balance being tipped too far againstfreedom in the name of security, and their recom-mendations attended mainly to restoring that bal-ance. Yet, as the McDonald Commission stated,“Canada must meet both the requirements of securityand the requirements of democracy: we must neverforget that the fundamental purpose of the former is

Conclusions and PolicyRecommendations

O ne observation that may readily be drawnfrom our discussion of the concept ofaccountability and of the evolution of the

various procedures developed in Canada to makenational security activities of the federal governmentaccountable is that this is a matter of considerablecomplexity. There is no single, generally agreed-upondefinition of accountability; instead we find it moreuseful to speak of “accountabilities,” a number ofmechanisms, each of which answers differing ques-tions depending on the political, institutional andcultural context and on the specific issues giving riseto demands for greater accountability. Forms ofaccountability in national security have arisen inCanada in answer to specific concerns, often voicedin a context of public controversy, and have devel-oped in an ad hoc, piecemeal and uncoordinatedfashion, resulting in a complex patchwork that defieseasy rationalization around coherent principles.Significantly, certain organizations within Canada’ssecurity and intelligence community and their prac-tices routinely go unexamined. Overall, the systemsof accountability emphasize propriety over efficacy.

It would be futile to seek accountability per se, as agood in and of itself. Indeed, as the aftermath of thesponsorship affair and the Gomery Commission testify,the quest for greater accountability as an end in itselfmay have perverse effects on the operations of govern-ment. Instead, we should begin by asking the funda-mental questions: Why accountability, and for what?

As we have seen, historically the quest for greateraccountability in national security has been drivenmost often by concern over impropriety. The exerciseof extraordinary powers, cloaked in unusual levels ofsecrecy, has from time to time given rise to anxietiesover abuse of these powers and the potentially nega-tive impact on human rights, civil liberties and thefabric of liberal democracy.98

The McDonald Commission laid the basis for themost significant policy response to concerns aboutpropriety. The CSIS Act and new accountabilityprocesses for CSIS followed. The Arar Commissionhas demonstrated that this agenda is by no meansexhausted. The failure to provide effective accounta-bility for the RCMP’s national security activitiesdemonstrated the incomplete, patchwork quality ofthe accountability architecture previously erected.

Investigations of complaints of possible impropriety, aswell as assessments of whether national security activi-ties are being carried out legally and ethically, call forquasi-judicial impartiality and political detachment onthe part of the reviewers. It is no doubt unrealistic toexpect that Parliament will voluntarily abstain fromany intervention when “fire alarms” go off. The trickwill be to have a system in which it holds back untilafter an independent review body has done its job. Awatching and waiting role for Parliament in suchinstances would also ensure that the independentreview body would not delay its investigation, as wasthe unfortunate case with SIRC and Air India. If thereare clear advantages to political detachment in assess-ing propriety questions, when it comes to assessingefficacy, it is precisely political involvement that isrequired where public policy is fundamentally at stake.

To illustrate this point, we might take one well-knownrecent example from the US. The spectacular intelligencefailure concerning the weapons of mass destructionallegedly held by Saddam Hussein’s regime in Iraq wasat the centre of the fateful decision to go to war in Iraqwithout international sanction. Was this failure the prod-uct of the intelligence agencies’ own shortcomings, orwas it, as many observers have concluded, the result ofthe administration pressuring the agencies to produceintelligence on demand to meet political objectives?Although inquiries by the US Senate IntelligenceCommittee in 2004 and 2006 faltered amid partisan con-siderations, there was no place where this tangled knotof political and intelligence issues could be more appro-priately addressed than in Congress.

To take another example from the Canadian context,the failure of Parliament to address the efficacy ofsecurity and intelligence in the Air India tragedy in1985 ultimately led to the calling of a public inquirymore than two decades later, long past the point whenlessons learned could have been usefully applied, andin the context of long built-up resentment on the partof the victims’ families at the apparent indifference ofauthorities to their losses. Given the importance ofpublic policy considerations (the separation of CSISfrom the RCMP; issues about intelligence being focusedon Cold War versus terrorist targets) in assessing theintelligence failure, it is difficult to see any moreappropriate body than Parliament to have carried outsuch an inquiry, not into the factual details but into thebroad policy implications.

The proposal of the former Liberal government for anational security committee of parliamentarians has notyet been acted upon by the present Conservative gov-

to secure the latter...Canada must have effective secu-rity. Security measures have the basic objective ofsecuring our democratic system” (Commission ofInquiry concerning Certain Activities of the RoyalCanadian Mounted Police 1981, 1:43, 47).

Democracy can be undermined by unchecked pur-suit of security. Yet security can be undermined byexclusive concern with democratic freedoms. In thecontemporary era of terrorism, inadequate securitycould mean that citizens might suffer the worst possi-ble violation of their human rights, the loss of theirvery lives (as indeed happened to the victims of theAir India bombing in 1985). But more to the immedi-ate point, in order to strike the appropriate balance,Parliament and an informed citizenry must be able toassess not only the freedom side, but also the securityside. Accountability must encompass not only propri-ety issues but also efficacy issues. Is security beingadequately protected? Are the agencies charged withthis responsibility doing an effective job? Is the publicreceiving value for money? What needs to be done toimprove security? These questions may be addressedby the various external review agencies already inplay, such as SIRC and the OAG, as well as internalreviewers like the IG for CSIS; or by parliamentarycommittees like the Senate committee on nationalsecurity under Colin Kenny; or by occasional publicinquiries. How adequately they have been addressed isanother matter. There certainly are doubts about theerratic quality of such inquiries, the failure of overalldirection and coordination, and the lack of continuity.

But there is a deeper problem. These specific effica-cy questions fall within the larger question of nationalsecurity policy. Are the policy objectives set by gov-ernment the correct ones? Are the agencies being use-fully tasked? Has government used the intelligenceand threat assessments it has received from its agen-cies appropriately? Once the line is crossed into mat-ters of public policy, external review bodies becomepowerless. They must maintain policy neutrality orlose their apolitical status, and thus their legitimacy.There is only one body that has every right and dutynot only to comment upon but also to participate inthe making of public policy, and that is Parliament.Recall that O’Connor in his policy review suggestedthat the two subjects he had deliberately neglected inhis recommendations — review for efficacy and therole of Parliament — might fruitfully be combined.

There are reasons why Parliament should defer toexternal, independent, arm’s-length review bodies fordetailed and careful assessment of propriety issues.

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indicate its special status and importance. The pres-ence of senators could also lend greater continuity tomembership, given the high turnover rate of MPsfrom election to election. The democratic legitimacyof elected MPs can be leavened with the relativelygreater freedom from partisan ties of senators.

A committee of Parliament for national securityshould be seen as a special case among parliamentarycommittees. Most important, its members must haveaccess to all relevant information, at whatever level ofclassification, and must therefore strictly abide by all theobligations of secrecy where required. Any committeestaff must be security cleared to the same level as thestaffs of external review bodies like SIRC. Committeesmust operate and deliberate under special security con-ditions that are higher than for those in effect for regu-lar parliamentary committees. There is a price to bepaid: members of such a committee will be to an extent“inside the loop” of the Ottawa security system. As such,they will inevitably experience limitations on theirautonomy as parliamentarians to publicly discuss secu-rity policy and performance on the basis of all that theyhave learned as a result of their access to classifiedmaterial. Remaining outside the loop, however, imposesthe greater burden of irrelevance. Becoming partialinsiders involves some trade-offs but is a necessary con-dition for meaningful participation in the process.

Another necessary trade-off would be required foreffective operation of such a committee. Partisanconsiderations would have to be minimized. Thisneed not imply in any way the muting or silencing ofcriticism of government policy and performance. Acritical distance from the executive would be the sinequa non of effective parliamentary scrutiny ofnational security. But there is a significant differencebetween substantive criticism and partisan criticism.It is especially the case with regard to national secu-rity matters that partisanship must be minimized tothe extent possible. In most areas of policy, partisandivisions are limited in their significance and ramifi-cations for the wider political culture. When nationalsecurity is at issue, partisan differences can quicklyescalate into characterizations of loyalty and disloy-alty to the nation. The US offers some unfortunateexamples of the effects of the partisan politicizationof national security issues, from the Cold WarMcCarthy era to the present era of the war on terror.Canada has been mercifully free of this malady forthe most part, but there is a worrying examplerecently of a lapse into partisanship in the deplorabledebate in the House on the extension of the preven-

ernment, although as a party the Conservatives prom-ised to increase the participation of Parliament innational security matters. We take it as a given thatsome form of greater parliamentary participation willbe brought forward in the near future. This is laudablein principle, but as always in institutional reform, thedevil is in the details. There are certain conditions thatmust be met if Parliament is to play an enhanced role.

First is the relationship to Parliament of a nationalsecurity committee. We do not endorse the idea of acommittee of parliamentarians, as opposed to a com-mittee of Parliament. Although the personnel of theformer may be limited to parliamentarians, from theHouse or the Senate, it would be too much a creatureof the prime minister, to whom the committee wouldreport, if the UK model is any guide. The PM wouldappoint the members and determine how much oftheir findings and recommendations would be report-ed to Parliament. The PM would also select the stafffor the committee (Phythian 2007: Davies 2002; Gill2007). A committee of Parliament, on the other hand,would carry with it the rights and privileges ofParliament, which could, if exercised effectively,establish a degree of autonomy from the executivebranch that would be crucial when reviewing theefficacy of national security activities carried out bythe executive.99 To be sure, the political difficultiessurrounding the establishment of a relativelyautonomous committee of Parliament during a periodof successive minority Parliaments with attendanthigh levels of partisan competition should not beminimized. In this context, a committee of parlia-mentarians would no doubt be an easier sell to agovernment in office. But the principle of parliamen-tary autonomy is important to preserve.

Several countries have established such a commit-tee, including both Australia and New Zealand. Ourpreference is something closer to the Australianmodel rather than that of New Zealand. Such a com-mittee would be established by statute, have a broadremit with purview over the entire security and intel-ligence community, and have the capacity to reportto Parliament at its discretion (but at least annually).This statute would also spell out the security proce-dures to be followed. Significantly, a committeeestablished by statute would bind Parliament to doinga specific job on a regular basis. Thus, it would hope-fully avoid the past inadequacies of ad hoc responsessuch as the Subcommittee on National Security.

A national security committee should be a jointcommittee of both House and Senate, which would

The McDonald Commission had envisioned comple-mentary roles for Parliament and the permanent reviewbody for CSIS. In this regard, it is important to recog-nize that legislative committees may not prove to beparticularly good at performing certain types of scruti-ny. American research suggests, in fact, that they maybe good at what McGubbins and Schwartz have referredto as dealing with “fire alarms” but poor at doing the“police patrolling” form of scrutiny (McGubbins andSchwartz 1984; Born, Johnson, and Leigh 2005).However, given the fact that the capacity and potentialperformance dimensions of efficacy demand before-the-fact assessments if intelligence failures are to be limited,leaving matters entirely to legislative committees maynot necessarily lead to positive outcomes. In otherwords, it is probably a mistake to divide accountabilityinto watertight compartments. Even if Parliament con-centrates its attention mainly on efficacy questions,some aspects of efficacy may still be left to the externalreview bodies (SIRC has for some years carried out someof the “police patrolling” scrutiny of CSIS).

One objection to this relationship might be thataccountability for propriety, especially the adjudicationof complaints against security agencies, requires adegree of quasi-judicial independence that efficacyinvestigations requiring some degree of before-the-factassessments may call into question. In our view, thereis no reason why the review bodies cannot compart-mentalize themselves so as to assure sufficient impar-tiality on the part of those assessing complaints. On theother hand, SIRC has indicated that it would not wishto see its complaints function hived off because it hasfound that the investigation of complaints informsSIRC’s understanding of how CSIS operates, thusimproving its capacity to review for efficacy.

Another objection, and one that should be taken seri-ously, is that reform may result in too much review,impeding the agencies’ capacity to carry out their nor-mal functions and protect Canada’s national security.While this argument has been used as a handy rationaleby some for avoiding genuine oversight, this is a realrisk, and we have already noted some instances of per-verse effects of imposing greater accountability.Certainly any interference by external reviewers inongoing operations would be counterproductive, but thispractice is not part of existing reviews (SIRC, forinstance, avoids investigating ongoing CSIS operations),nor should it be contemplated in any of the proposednew forms of review. While review for efficacy mayinclude some before-the-fact knowledge of what is beingdone, this in no way implies any hands-on involvement

tive arrest and investigative hearing provisions in theAnti-terrorism Act, in which allegations were tradedof parties being “soft on terrorism” or “soft onCharter rights,” to the detriment of any substantivediscussion (Roach 2007, 9-11). Happily there are othermore encouraging precedents, including the work ofthe special committee that conducted the five-yearreview of the CSIS Act, which, as described earlier,operated in an entirely nonpartisan fashion withoutlimiting its capacity to scrutinize with a critical eye.

A key ingredient in permitting informed but rela-tively nonpartisan participation by parliamentarians isa strong committee support base, in terms of researchand expert advice. The record of adequate support forparliamentary committees in Canada is not good, com-paring unfavourably with the relatively more lavishresources accorded congressional committees in the US.A case could certainly be made for exceptional supportfor a national security committee, given its unusualchallenges. But there is another, more attractive alter-native to consider: providing external security-clearedexpert advice to the committee on a continuing basis.100

It is here that we envisage a potentially usefulrelationship between the external, arm’s-lengthreview bodies and a parliamentary committee. Thedevelopment of experienced, expert personnel in thereview bodies — already evident for many years inSIRC — could be tapped by a parliamentary commit-tee to assist in reviews for efficacy. The strengthenedRCMP review body, the CSE commissioner and theenhanced SIRC, as recommended in the ArarCommission policy review, could offer a pool ofexpertise for the parliamentarians. The IntegratedNational Security Review Coordinating Committeerecommended by O’Connor (made up of the heads ofthe review bodies and an independent chair) could dodouble duty as the coordinating body and main con-tact point between the parliamentary committee andthe review bodies. This relationship of course pre-sumes the provision of adequate resources to thereview bodies so that they are enabled to performtheir regular functions as well as to serve the parlia-mentary committee when required.

An advantage of this arrangement would be toencourage a more cooperative and complementaryrelationship between parliamentary and externalreview than has been evident at times in the past, theworst example of a breakdown in relations being thehostile relations that developed between SIRC and theparliamentary subcommittee on national securityduring the “Heritage Front” affair.

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cial problems. Since national security agencies operateunder heavy secrecy, and since those bodies carryingout reviews must operate under the same levels ofsecrecy, critics may remain skeptical of heavily cen-sored or redacted reviews of secret operations, or evensee cover-ups on the basis of relatively innocuousdeclassified parts of largely nondisclosable reports. Inpart, this difficulty is unavoidable. Ironically, in thiscontext the best indicator of assurance may comewhen the review body has established a track record ofpublic criticism of the agency it is reviewing (here thehistory of CSIS-SIRC relations is instructive).

There is another dimension here that should beaddressed, and that is the overreliance on secrecy ofthe federal government. The history of the ArarCommission’s protracted battles with Ottawa over thepublic disclosure of information provides a usefulguide (Whitaker 2008, 11-5). This confrontation hadthe political effect of enhancing the legitimacy of theinquiry, while raising public suspicions of the govern-ment’s motives. In the end, the dispute was settled inthe Federal Court after the publication of the finalreport with additional material ordered disclosed. Theadditional material in no way risked national securitybut demonstrated that the government had fought towithhold some information that was potentiallyembarrassing, as well as some references that werepatently innocuous although deemed nondisclosableaccording to technically strict and narrow interpreta-tion. The lesson to be drawn is that if accountabilityin national security is to be effective, and seen to beeffective, the government should steel itself to take amore expansive interpretation of what may be pub-licly disclosed in the course of reporting externalreview. Of course, genuine national security confiden-tiality must be strictly observed (it is notable that nota single instance of disclosure damaging to nationalsecurity has ever been attributed to SIRC in its quar-ter-century of existence). But if improved accountabil-ity and public assurance are to be achieved, morereasonable flexibility in disclosure is essential.

by reviewers in operational matters. Another concernof operational personnel is that expectation of ex postfacto judgments by reviewers demanding adherence tounrealistic standards of behaviour may have the effectof making front-line people risk-averse and overlycautious (“better safe than sorry”), to the detriment ofinnovative responses to security threats. Much dependson how review is actually carried out, but even moreon applying realistic and reasonable standards for bothpropriety and efficacy.

One way of allaying these fears is to address the keyquestion of what we want accountability to do.Accountability for control can be left mainly to theexecutive, as can discipline and sanctions against indi-vidual employees for misbehaviour or incompetence,always a matter for internal systems of administrativecontrol. External reviewers should focus on systemicand structural issues rather than individual behaviour.Accountability for learning can be a positive asset toany organization. External reviewers can point to mis-takes made not as a way to punish individuals —though they may legitimately follow up to establishwhether those responsible for the organization haveproperly dealt with such matters — but as a guide tohow the organization can improve its performance andget better results. They can also usefully warn ofpotential pitfalls down the road that if left unaddressedmay later have a damaging impact on the organiza-tion. It is interesting to note that, despite some rockytimes early in the relationship between CSIS and SIRC,CSIS today readily acknowledges that on balance SIRChas made it a better organization than it would havebeen in the absence of an external review body, that ithas in effect internalized many of the lessons ofaccountability, to its organizational benefit.101

Accountability for learning is closely related toaccountability for assurance. In some ways the great-est net benefit to national security agencies ofimproved accountability is public legitimacy. Oneonly has to look at the public relations difficultiesthat have befallen the RCMP in recent years, on boththe national security and the law enforcement sides,in relation to its ineffective or dysfunctional externalreview procedures, to realize the potential value tothe force itself of effective external review. Effectivereview, however, must mean real accountability, notpro forma whitewashes that leave the public unsatis-fied, suspicious and resentful. Only effective reviewcan offer genuine assurance to the public.

Review must of course be seen to be effective. Inthe case of national security matters, this presents spe-

8 Richard Ericson identified what he cleverly called“account ability” to describe “the capacity to provide arecord of activities that explains them in a credible man-ner so that they appear to satisfy the rights and obliga-tions of accountability” (1995, 137).

9 See Privy Council Office (2003). 10 Cabinet confidences are records designated by the Privy

Council Office as belonging to the cabinet paper system.They include such documents as memoranda to cabinet,cabinet committee reports, records of decisions, agendas,aide-mémoires and documents prepared for cabinet com-mittees.

11 The exclusion of classes of information from the Act ismuch more serious than exemption of information fromdisclosure. Exemptions may be appealed to the informa-tion commissioner and an injury test is applied.Exclusions cannot be appealed, and no tests may beapplied.

12 Canadian Security Intelligence Service Act, R.S.C. 1985,chap. C-23 (CSIS Act), section 18 (1).

13 Access to Information Act, R.S.C. 1985, chap. A-1, sec-tions 16(1)(c)(ii) and 17. Similar exemptions can befound in the Privacy Act, R.S.C. 1985, chap. P-21, sec-tions 22(1)(b)(ii) and 25.

14 This was a major point of contention between CSIS andthe RCMP in the investigation of the Air India bombingin 1985, once again reiterated in testimony before theAir India inquiry. It is a persistent source of tensionbetween law enforcement agencies and intelligenceagencies, the latter concerned not to endanger intelli-gence assets by exposure to public trials, and the formermore concerned with securing criminal convictions.

15 Canada Evidence Act, R.S.C. 1985, chap. C-5. 16 Anti-terrorism Act, S.C. 2001, chap. 41, Part 3, sections

43-46. 17 US senator Daniel Moynihan, from his extensive experi-

ence in oversight of US intelligence, stressed:“Departments and agencies hoard information, and thegovernment becomes a kind of market. Secrets becomeorganizational assets, never to be shared save inexchange for another organization’s assets...The systemcosts can be enormous. In the void created by absent orwithheld information, decisions are either made poorlyor not at all” (1998, 73).

18 A classic example of this concerned information aboutmurders committed by Daniel Gingras and Allan Légère,who had escaped from separate federal prisons.Suspecting a cover-up, the Justice Committee demandedin 1991 to see a report by Corrections Canada. TheSolicitor General offered only a copy released under theAccess to Information Act on Privacy Act grounds. Hefinally released the full document when it became clearthat the House would use its powers under StandingOrder 108 (Farson 1996, 37-8).

19 One instance in which particular precautions were takenand where there could have been very significant conse-quences occurred when the Subcommittee on OrganizedCrime of the Standing Committee on Justice and HumanRights conducted its investigation in 1999-2000. Because

Notes1 The authors would like to thank Peter Gill, Loch

Johnson, Philip Rosen and Thorsten Wetzling and theInstitute for Research on Public Policy’s anonymousreviewers for their comments.

2 See, for example, Canadian Institute of InternationalAffairs (2004-05) and Charters (2008); Forcese (2008a);Roach (2007); Whitaker (2008).

3 Federal Accountability Act, S.C. 2006, chap. 9. Twoimportant elements, however, were the designation ofdeputy ministers and the deputy heads of certain organ-izations as accounting officers and the appointment of aparliamentary budget officer. The accounting officerswill likely extend the information that Parliamentreceives about the functioning of departments andagencies; the parliamentary budget officer will likelyprovide greater clarity to the budgetary process.

4 Controls over the appointment of political staffers topermanent public service positions, changes in thegovernance structure of the Canadian DairyCommission and lower limits on campaign donationsby individuals may be admirable initiatives in them-selves, but are problematic components of enhancedadministrative accountability.

5 Donald Savoie (2008a) argues: “The chain of accounta-bility, from voters to MP, from MP to prime ministerand cabinet ministers, from ministers to the heads ofgovernment departments and agencies, and from sen-ior civil servants to front-line managers to theiremployees, has broken down...We should no longertolerate court government, by which a political leaderwith the help of a handful of courtiers shapes andreshapes instruments of power at will.” There are sev-eral important studies on the accountability roles ofmajor institutions of government in the GomeryCommission’s research.

6 As one well-informed commentator (Simpson 2007)has written on the perverse impact of the attempts tocounter the sponsorship scandal: “New mini-bureau-cracies, more paperwork, fresh regulations and over-the-top requirements to report who spoke to whomoutside government are already having the perverseeffect of making an already cumbersome governmentmore cumbersome, and an already form- and proce-dure-driven bureaucracy even more bureaucratic. Theeffect of the Gomery inquiry, therefore, was to flushout shady characters and dubious, even illegal, actionsbut, over the long term, to make even less effective theoperations of the federal government and less attrac-tive that government as a place to work.”

7 New measures also require internal auditing to bemore independent. Treasury Board now requiresdeputy ministers to have a majority of external mem-bers on their departmental audit committees by April2009 (Treasury Board 2008). The role of these commit-tees is wide-ranging and in addition to the internalaudit function encompasses financial and risk man-agement, management controls, and values and ethics.See Treasury Board (2005).

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32 In theory, this means that the Parliament of Canada isnot bound by such statutes as the Privacy Act or theAccess to Information Act or such conventions as thatcovering sub judice matters. By comparison, NewZealand’s Intelligence and Security Act 1996, whichincreased the level of “oversight and review,” specifi-cally binds the New Zealand Crown (section 4).

33 For example, the forerunners of the CSEC were estab-lished and moved between departments by executiveorder (Farson 2001, 78-94)

34 It might equally be noted that few MPs had fullygrasped the powers and privileges available to them.This deficiency would subsequently be addressed byMP Derek Lee, a former member of the special com-mittee that reviewed the CSIS Act and subsequently achair of the Subcommittee on National Security, in the1990s (1999). The sub judice convention holds thatmembers of Parliament should not bring up matters indebates, questions and motions that are awaiting adju-dication in a court of law. To thwart answers, govern-ment ministers have sometimes dubiously claimed thatthis rule also applied to matters under investigation bythe police.

35 One of the worst examples of bureaucrats beingabused by a committee occurred during the Al-Mashathearings in the early 1990s. Normal practices were notfollowed. For example, Library of Parliament staff nor-mally draw up a list of questions that witnesses mightproperly be asked. In this instance, they were informedthat their services were not required (Sutherland 1991,573-603).

36 The chair was MP Blaine Thacker. Parliamentary com-mittee staff pale by comparison to those of US con-gressional committees. Yet the special committee hadfour researchers, instead of one or two, which wasthen normal.

37 Conflict between Parliament and SIRC has been evi-dent on at least two important occasions. The first wasduring the five-year review process (discussed below).The other occurred during the Heritage Front affair.For a critical examination of the review process seeWhitaker (1996, 279-305). For a contrary view by thethen executive director of SIRC, see Archdeacon (1996,306-12). See also Farson (1996, 38-46).

38 Subsection 2(c) was amended by the Anti-terrorismAct in 2001 to add the words “religious or ideological”(section 89).

39 McDonald had made recommendations regarding fed-eral-provincial cooperation that were more hortatorythan institutional in nature, leaving them to politicaland administrative discretion; there are specific provi-sions in the CSIS Act referring to cooperative arrange-ments with the provinces, and provincial police forces,on specific matters (sections 13[2] and 17).

40 Royal Canadian Mounted Police Act, R.S.C. 1985, chap.R-10, Part VI.

41 The solicitor general’s office was superseded by theposition of minister of public safety during a majorreorganization of government in 2004.

of threats received, the subcommittee decided to holdall of its proceedings in camera to protect witnesses,committee members and their staff. While the subcom-mittee was very careful to protect the confidentialityof sources and their evidence, even going to the pointof identifying only recommendations in its report, onemember of the subcommittee was severely chastised bythe chair for releasing information to the media aboutthe location of some of its hearings outside Ottawa.

20 Security Offences Act, R.S.C. 1985, chap. S-7. 21 For example, Standing Order 108, discussed later.22 The questioning process has also recently become con-

tentious. Justice John Gomery, for example, hasrecently criticized parliamentarians in this regard, sug-gesting that lawyers are more capable. Given that somany parliamentarians have legal training, this ration-alization seems somewhat misconceived. Equally, criti-cism could be lodged against legal teams working forcommissions of inquiry for not knowing what to ask.Perhaps some players are better at some forms ofinquiry than others. Any evaluation of what is the bestpractice should take such matters into considerationand would need to encompass the politics of the mat-ter, the time available, the resources at hand, etc.

23 Prime Minister Brian Mulroney made the apology in astatement in the House of Commons on September 22,1988.

24 According to the 1971 census, the total population ofCanada was 21,568,000: 800,000 files represent infor-mation on more than one out of every 27 Canadians.Even allowing for duplication, this represents aremarkable level of surveillance.

25 House of Commons, Debates, March 7, 1966, 2297.26 It is unclear whether the government was following

Mackenzie. According to John Starnes (1998, 131-3),he was initially asked if he was interested in being thefirst civilian commissioner of the RCMP.

27 This may partly be explained by the types of scandalsinvolved. Loch K. Johnson has explored the distinctionbetween low- and high-threshold scandals (2009).

28 A Quebec government inquiry, the Keable Commission(Commission d’enquête sur des opérations policières enterritoire québécois), which reported in 1981, precededthe McDonald Commission described below.

29 Order-in-Council, PC 1977-1911, July 6, 1977. 30 On the political and bureaucratic background to civil-

ianization see Littleton (1986, 135-62) and Whitaker(1991, 659-65).

31 A similar situation has more recently occurred in theUS, where warrantless wiretaps in contravention of theForeign Intelligence Surveillance Act were employed bythe Bush administration. The experience reveals the lim-itations of both the internal and external oversight sys-tems, as it was the media rather than Congress or therelevant inspector general (IG) that revealed this wrong-doing. In Canada, the CSEC was authorized by the Anti-terrorism Act to listen to communications involvingCanadians when the origin of the call is from abroad. Inall other circumstances, a warrant is required.

is appointed for a five-year term during good behaviour,and is eligible to be reappointed for a term not exceed-ing five years. Each takes the privy councillor’s oath,which includes the requirement to keep things learned inthe capacity of a privy councillor secret, as well as theoath of secrecy that employees of CSIS take.

51 No one has been appointed to SIRC who has a past affili-ation with the Bloc Québécois, although the leader ofthat party in the House has been consulted over theappointment of members from Quebec. It took six yearsfollowing its first appearance as a recognized party forthe Reform/Canadian Alliance (now part of theConservative Party) to gain a representative on the com-mittee. SIRC has, however, always had one member withpast affiliations to the New Democratic Party. Somemembers of SIRC have been politically independent. Forthe first few years, a government party representativeserved as chair, but in 2005 a Liberal governmentappointed the former Progressive Conservative premierof Manitoba as chair.

52 Beyond cabinet confidences, there is an additionalexception to SIRC’s access. In 1988, SIRC entered into a“third party access protocol” with CSIS that potentiallylimits SIRC’s access to CSIS documents containing infor-mation provided by third parties (foreign governmentsand organizations) if the latter withhold consent,although CSIS “will use its best efforts to obtain authori-ty to disclose information provided by third parties whenrequested to do so by SIRC” (memorandum from chair-man of SIRC to director of CSIS, May 25, 1988, withAnnex of same date, disclosed under Access toInformation request to SIRC, January 23, 1995). In themid-1990s, SIRC publicly complained when a CSIS doc-ument it had sought was instead returned to its donoragency (SIRC 1996, 5-6).

53 A list of SIRC’s reports can be found at http://www.sirc-csars.gc.ca/opbapb/lsrlse-eng.html.

54 For an overview of TARC, see testimony of Jack Hooperto the Commission of Inquiry into the Actions ofCanadian Officials in Relation to Maher Arar, PublicHearing, June 22, 2004, pp. 458-73. http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/07-09-13/www.stenotran.com/commission/maherarar/2004-06-2%20volume%202.pdf. TARC is chaired by thedirector of CSIS, and includes senior CSIS officers as wellas representatives from the Department of Justice andPublic Safety Canada.

55 Testimony of John Adams, Chief of CSE, and other offi-cials in Standing Senate Committee on National Securityand Defence, Proceedings, Issue 15 — Evidence, April 30,2007.

56 There have, however, been allegations that Canadianshave been involved. In addition to denying these strenu-ously, the Canadian government has expressed concernabout “false-flag operations,” especially where Canadianpassports have been used (Thorne 2009).

57 Prior to an amendment of the CSIS Act in 2001, SIRCalso conducted investigations and hearings with respectto sections 39 and 81 of the Immigration Act and

42 Disclosed versions of the IG certificates are now madeavailable on the IG’s public website:http://www.publicsafety.gc.ca/abt/wwa/igcsis/igcsis-en.asp. It should be noted that the provision of theseannual certificates to SIRC has not always been timely:i.e., within SIRC’s annual reporting period.

43 There is one article from the late 1980s devoted entire-ly to the role of the IG of CSIS (Ryan 1989). For acomparative perspective, however, see Wellar(1996/97).

44 In the early 1990s one IG objected to what she took tobe unreasonable limitations on her access to CSISrecords relating to ongoing investigations. The minis-ter supported the CSIS director on this point, and thisIG resigned her position after a relatively short tenure(Whitaker 1999, 139). The director of CSIS refused tomeet with another IG for years (Bronskill 1999). Afterthis IG resigned, the post remained open for over ayear. At the same time, there were delays in replacingtwo SIRC members (Fife 1999).

45 Memorandum, Solicitor General to Director of CSIS,Oct. 30, 1989 (Solicitor General 1991, 14).

46 SIRC investigated the Atwal warrant and concludedincompetence rather than malice was the problem(SIRC 1988, 11).

47 See testimony of Jack Hooper to the Commission ofInquiry into the Actions of Canadian Officials inRelation to Maher Arar, Public Hearing, June 22, 2004,pp. 458-73. http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/07-09-13/www.stenotran.com/commission/maherarar/2004-06-22%20volume%202.pdf

48 In 2007, the Supreme Court of Canada struck down theoriginal provisions of this legislation governing securi-ty certificates in its decision on Charkaoui v. Canada(Minister of Citizenship and Immigration), 2007 S.C.C.9. Hitherto, evidence introduced by the governmentcould not be tested by lawyers acting for those namedin certificates. This process was one that made FederalCourt justices uneasy as it forced them to act as advo-cates as well as judges (Hugessen 2002, 381-6).Revisions to the legislation subsequently removed thisduty by installing special advocates. Such lawyershave appropriate security clearances that enable themboth to test government evidence and to appear inclosed hearings where they can cross-examine govern-ment witnesses. At no point are they in a solicitor-client relationship. In fact, they are obliged not toshare any information that they come across witheither the persons named in the certificate or theirlawyers.

49 Section 34(1) of the CSIS Act establishes the criteriaregarding the composition of SIRC.

50 Privy councillors are appointed for life by the gover-nor general on the advice of the prime minister asadvisers to the Crown. Traditionally, cabinet ministersare made privy councillors. They each take an oath. InSIRC’s case, its appointees are named privy councillorsat the time of their appointment. Each member of SIRC

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69 The special committee’s record regarding its recommen-dations for statutory reform may not be as poor as isoften assumed. A senior official with particular respon-sibilities for the two acts did suggest in a private con-versation with one of the authors that many of therecommendations were taken up through policy initia-tives.

70 As a subcommittee, its reports would have to beapproved by the full standing committee.

71 For the use of such executive orders regarding CSECprior to the adoption of its enabling statute in 2001,see Farson (2001, 78-94).

72 Its existence had first been identified as early as 1975by the US publication Ramparts and subsequently bythe CBC.

73 Privacy Commissioner (1996, 52); Auditor General ofCanada (1996, chap. 27, main point 53).

74 Order-in-Council, PC 1996-899, June 19, 1996.75 By May 2007, some 40 classified reports had been sub-

mitted (Communications Security EstablishmentCommissioner 2006, Annex B).

76 See, for example, Communications SecurityEstablishment Commissioner (2002, 3-4).

77 Amendments to the National Defence Act, R.S.C. 1985,chapter N-5, section 273.63.

78 Ibid., 3. 79 Arguably, both of these functions are essential. Bill

Robinson has shown that the CSEC failed at one pointto keep up with technological developments (1992).Signals intelligence has changed dramatically as newcommunications technologies have come on stream.This means that law and accountability proceduresmust similarly keep up.

80 Communications Security Establishment Commissioner(2006, 13).

81 Although Commissioner Claude Bisson appeared dur-ing consideration of the Anti-terrorism Act, no com-missioner testified before the Standing Committee onNational Defence and Veterans Affairs on the office’sannual reports before 2004. See Commissioner AntonioLamer’s evidence to that committee on April 20, 2004,at http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=1307211&Language=E&Mode=1&Parl=37&Ses=3.

82 Auditor General of Canada (1996). The US GAO hasbeen routinely denied cooperation by the CIA,although recently the US Department of Defense hasdirected “explicitly for the first time that GAO requestsfor foreign intelligence and counterintelligence infor-mation may be granted” (“DOD Should Not‘Categorically’ Deny GAO Access to Intelligence”2009).

83 Auditor General of Canada 2003, 10.139. 84 Auditor General of Canada 2003, 10.154.85 Auditor General of Canada 2003, 10.162.86 Auditor General of Canada 2004.87 Auditor General of Canada 2005. 88 This was until recently a classified document and is

now available to the public only in redacted form.

recommendations for deportation on security or crimi-nal grounds. Matters may also be referred to SIRC bythe Canadian Human Rights Commission pursuant tosection 45 of the Canadian Human Rights Act, when aminister advises the commission that a complaint isrelated to national security: CSIS Act, section 38.

58 The number of complaints excludes those dealing withthe application of the Official Languages Act in theCSIS workplace. Between 1985 and 1987 alone, SIRCreceived 2,256 complaints under the latter category.

59 SIRC (2005), section 46(2).60 Canada (Minister of Employment and Immigration) v.

Chiarelli, [1992] 1 S.C.R. 711.61 Thomson v. Canada (Deputy Minister of Agriculture),

[1992] 1 S.C.R. 385.62 SIRC 1987, 33-40. The impetus for closing the branch

also came from a special task force headed by a seniorpublic servant (Osbaldeston 1987; Gill 1989).

63 Commission of Inquiry into the Investigation of theBombing of Air India Flight 182, Justice John Major,Commissioner.

64 The most acerbic journalistic critic has been AndrewMitrovica, who writes about a “sort of StockholmSyndrome within the intelligence community” in con-cluding that “SIRC, ironically is often CSIS’s bestfriend.” He adds that “the important and necessarybusiness of watching over the watchers cannot be leftto a handful of part-time, political appointees who areoften preoccupied with their business interests, legalcareers and other pursuits” (2002, 293, 332-3). There isa considerable literature on “co-optation”: in the US,see Aberbach (1990), and for a comparative analysissee Born, Johnson, and Leigh (2005).

65 In 2005, a news report quoted SIRC as claiming thatCSIS “purposefully misled” it and attempted to “sup-press information that was embarrassing to theService” (Curry and Freeze 2005). In its Annual Report2005-2006, 12-14, SIRC took issue on a number ofcounts with the manner in which CSIS was handlingexchanges of information on Canadians with countrieswith questionable human rights records, a highly con-tentious issue that has been the subject of both theArar Commission and the Iacobucci Inquiry.

66 Laurence Lustgarten and Ian Leigh write that SIRC “haspushed CSIS into what was described as ‘pre-emptivechange’. That is, CSIS has done things it would proba-bly not have done, sometimes in more radical fashionthan SIRC itself might have suggested. The very exis-tence of a review body pushed the Service into inte-grating into its own decision-making the kinds ofconsiderations SIRC exists to voice publicly” (1994,461). On the concept of an organizational culture inintelligence agencies, see Farson (1991a, 185-217).

67 One of the authors (Stuart Farson) served as director ofresearch for the special committee.

68 Among the documents denied were the annual reportsof the director, SIRC reports (except its annual reports),the IG’s certificates, the service’s policy and budgetarypapers.

independent arm’s-length review mechanism for theRCMP” and to consider how the recommended mecha-nism would interact with “other review bodies.”Arguably, he interpreted this mandate literally, andavoided any discussion of Parliament’s involvement. Oneimpact of this has been that the RCMP has respondedonly to his specific recommendations on the force, not tothe broader question of how it might inform Parliamentabout national security criminal investigations.

98 Impropriety in the special case of national securityshould not be seen as limited to illegality, but mayencompass actions that are technically legal within thespecial framework that applies to national security activ-ities but may nonetheless be judged unethical or inap-propriate according to the wider framework of socialvalues. Thus, accountability for propriety has gonebeyond the simple verification of the legality of theactions of national security officials to the interrogationof the legal framework within which they operate. Thisframework itself, as well as the resultant practices of theagencies, has undergone successive reforms over theyears to reflect shortcomings revealed by outside scruti-ny. Thus, the criteria established in the CSIS Act for whatactivities that agency can and cannot appropriately tar-get for intrusive surveillance provided outside reviewerswith sufficient reason to recommend successfully theclosure of the Counter-Subversion Branch — not becausethat branch was operating illegally, but because it wastargeting inappropriately in light of the principles enun-ciated in the Act. Similarly, the Arar Commission pointedto intelligence-sharing practices by the RCMP that haddisastrous consequences for the human rights of MaherArar; these practices were not illegal, but they wereinappropriate, and thus subject to calls for reform ongrounds of impropriety.

99 We have explored how other countries have adapted thecommittee of parliament option (Farson and Whitaker2009).

100 With regard to parliamentary review of anti-terrorismlegislation, Craig Forcese, drawing on the UK andAustralian examples, makes a strong case for what hecalls “precursor expert review” to inform parliamentarycommittees in Canada (2008a).

101 See the answer given by Ward Elcock, the longest-serv-ing director of CSIS, regarding SIRC’s influence:Commission of Inquiry into the Actions of CanadianOfficials in Relation to Maher Arar, Public Hearing, June21, 2004, p. 187 (http://epe.lac-bac.gc.ca/100/206/301/pco-cp/commissions/maher_arar/07-09-13/www.stenotran.com/commission/maherarar/2004-06-21%20volume%201.pdf. accessed July 13, 2009).

89 One of the authors (Whitaker) was chair of the panel.90 “Speaking Remarks by David Brown at the Release of

the Report of the Task Force.” December 14, 2007.http://www.publicsafety.gc.ca/rcmp-grc/sn-eng.aspx.Brown recommends a new Independent Commissionfor Complaints and Oversight for the RCMP, explicitlydesigned as an accountability mechanism for assur-ance and legitimation: “the goal [is] restoring andmaintaining confidence of the public and the membersand employees of the Force” (Task Force onGovernance and Cultural Change in the RCMP, 17). Seealso House of Commons Standing Committee on PublicAccounts (2007).

91 We have distinguished between a committee of parlia-mentarians and a parliamentary committee (Farsonand Whitaker 2007).

92 One of the authors (Whitaker) was a member of a five-person panel advising O’Connor on the policy review,and thus participated in shaping the recommendationsthat are laid out here. The other (Farson) was an expertwitness in this part of the inquiry.

93 Examples include the Integrated National SecurityEnforcement Teams (INSETs), which work togetherunder RCMP direction but involve CSIS and other fed-eral agencies, as well as provincial police forces whereappropriate; and Integrated Border Enforcement Teams(IBETs) and other similar cooperative efforts that mayinvolve not only federal and provincial agencies butAmerican federal and state agencies as well. INSETshave registered one apparent success in the 2006arrests of 18 alleged terrorists in Toronto, thoughcharges have so far been stayed against several ofthose originally charged.

94 In personal conversation with the authors, the formerchair, Shirley Heafey, described the complaints com-mission system as “broken.”

95 The PCO is responsible not only for the developmentand coordination of community-wide security andintelligence policy, but also for the InternationalAssessment Staff, both under the direction of thenational security adviser. Presumably, the PCO was notconsidered because O’Connor was focusing on propri-ety issues. O’Connor did recommend that after fiveyears, reconsideration should be given to whetherother federal agencies should be subject to review. Arecent example of expanding intelligence collection bythe Canadian government with potential implicationsfor accountability is a report that the DefenceDepartment is developing a human intelligence gather-ing capacity for foreign deployments (“New MilitarySpy Unit to Gather Information on Overseas Missions”2008).

96 One might equally argue that it was a fallacy tobelieve that disbanding the RCMP Security Servicesomehow also detached the RCMP from its counterter-rorism responsibilities and the intelligence process thatthis work demanded (Farson 1991c).

97 For example, the policy side of the Arar Commissionrequired O’Connor to make recommendations for “an

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Security and Democracy/Securité et démocratie

“Canada’s National Security ‘Complex’: Assessing the Secrecy Rules”Craig ForceseIRPP Choices, Vol. 15, no. 5 (June 2009)

“The (Un)Peaceable Kingdom? Terrorism and Canada before 9/11” David ChartersIRPP Policy Matters, Vol. 9, no. 4 (October 2008)

“Fixing the Deficiencies in Parliamentary Review of Anti-terrorism Law: Lessons from the United Kingdom and Australia” Craig ForceseIRPP Choices, Vol. 14, no. 6 (May 2008)

“Better Late than Never? The Canadian Parliamentary Reviewof the Anti-terrorism Act”Kent RoachIRPP Choices, Vol. 13, no. 5 (September 2007)

National Security and Interoperability/Sécurité nationale et l'intéroperabilité

“Weak States and Sudden Disasters and Conflicts: TheChallenge for Military/NGO Relations” Various authorsConference paper, June 2005

Geopolitical IntegrityHugh Segal (ed.)Monograph, April 2005

“Mature Peacekeeping Operations as Facilitators of OrganizedCrime” Irv MaruceljWorking paper 2005-1 (March 2005)

“Guarding the Continental Coasts: United States MaritimeHomeland Security and Canada” Joel J. SokolskyPolicy Matters, Vol. 6, no. 1 (March 2005)

“Happiness Is — a Rising Defence Budget?” Don MacnamaraSpecial report (February 2005)

Publications

“Canadian Naval Future: A Necessary Long-Term PlanningFramework”Peter HaydonWorking paper 2004-12 (November 2004)

“Addressing the Security-Development Nexus: Implicationsfor Joined-up Government” Ann M. Fitz-GeraldPolicy Matters, Vol. 5, no. 5 (July 2004)

“Realism Canadian Style: The Chrétien Legacy in NationalSecurity Policy” Joel J. SokolskyPolicy Matters, Vol. 5, no. 2 (June 2004)

“Force Structure or Forced Structure? The 1994 White Paperon Defence and the Canadian Forces in the 1990s” Sean M. MaloneyChoices, Vol. 10, no. 5 (May 2004)

“A Vigilant Parliament: Building Competence for EffectiveParliamentary Oversight” Douglas L. Bland, Roy RempelPolicy Matters, Vol. 5, no. 1 (February 2004)

“Four US Military Commands: NORTHCOM, NORAD, SPACE-COM, STRATCOM — The Canadian Opportunity” Joseph T. JockelWorking paper 2003-3 (November 2003)

“Are We Just Peacekeepers? The Perception Versus the Realityof Canadian Involvement in the Iraq War” Sean M. MaloneyWorking paper 2003-2 (November 2003)

“The SORT Debate: Implications for Canada” Philippe LagasséWorking paper 2003-1 (October 2003)

“Military and Postconflict Security: Implications forAmerican, British and other Allied Force Planning and forPostconflict Iraq” Ann M. Fitz-GeraldChoices, Vol. 9, no. 3 (April 2003)

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L’étude retrace l’historique des mécanismes d’im-putabilité au Canada en expliquant comment, quand etpourquoi on les a adoptés. Généralement suscitées par unscandale public, les réformes en ce domaine ont surtoutvisé à vérifier le bien-fondé. Mais depuis le 11 septembre2001, de nouvelles formes de menaces à la sécurité ontsoulevé de nouveaux défis. Les processus d’imputabilitédoivent donc s’adapter aux réalités actuelles en intégrantles deux aspects du bien-fondé et de l’efficacité. Larecherche d’une plus grande imputabilité a certes connudes avancées, mais le processus n’est pas encore terminé,observent les auteurs.

Dans le débat sur les meilleurs moyens de scruter lesactivités des milieux du renseignement et de la sécurité,on n’a toujours pas déterminé clairement ce que doiventaccomplir les différents organismes et processus. L’enjeuclé réside ici dans l’étendue des pouvoirs disponibles et lameilleure manière de les exercer. Trois éléments revêtentune importance capitale : l’accès aux personnes et auxdocuments ; le pouvoir d’exiger des réponses précises etcomplètes ; le processus, la synchronisation, la substanceet l’indépendance de la procédure de reddition de compte.

Les recommandations des auteurs sont de deux ordres.Compte tenu de l’intégration croissante des opérations desécurité nationale gouvernementales et intergouverne-mentales, ils recommandent premièrement que les méca-nismes d’imputabilité débordent des frontièresinstitutionnelles. Deuxièmement, ils recommandent que lerôle du Parlement dans le processus d’imputabilité soitrenforcé, en étroite coordination avec les organismesd’examen et de surveillance existants. Mais, avertissent-ils en terminant, cette imputabilité accrue ne doit aucune-ment entraver les activités de ceux qui protègent lasécurité nationale du Canada.

R eg Whitaker et Stuart Farson examinent danscette étude le système d’imputabilité qui s’ap-plique aux agences et ministères gouvernemen-

taux chargés de la sécurité nationale du Canada, puis ilsformulent des recommandations visant à le réformer.

Chacun s’entend aujourd’hui pour accroître l’im-putabilité gouvernementale, mais sans nécessairementen comprendre tous les enjeux. La notion d’imputabilitéexige en effet une analyse approfondie, et ses objectifsdoivent être clairement définis, car la volonté d’ac-croître le niveau d’imputabilité a trop souvent produitdes résultats imprévus par le passé, voire certains effetsindésirables. La sécurité nationale soulève à cet égarddes défis particuliers, par ses exigences exceptionnellesen matière de secret notamment et aussi en raison durapport complexe entre les activités de renseignementet l’application de la loi.

Pour analyser la notion d’imputabilité dans le domainede la sécurité nationale, les auteurs portent une attentionparticulière aux concepts d’« examen » et de« surveillance ». Souvent perçu comme une mesure postfacto, l’examen est généralement considéré au Canadacomme l’option privilégiée pour accroître l’imputabilité.Mais les auteurs s’interrogent sur la pertinence de cechoix dans le domaine examiné. Ils montrent que lesmécanismes d’imputabilité ont surtout eu pour fin devérifier le bien-fondé et l’efficacité des programmes, deuxcritères interdépendants mais différents. Si l’examen sem-ble adapté au premier critère, la surveillance paraît plusappropriée lorsqu’on vise l’efficacité. Les auteurs pré-conisent donc d’élargir notre conception de l’imputabilitéen prenant en considération tant l’examen que la surveil-lance. Ils proposent aussi d’établir une nette distinctionentre l’imputabilité au sein du ministère responsable de lasécurité nationale (c’est-à-dire au niveau de l’autoritéexécutive et principalement pour des raisons de contrôle)et aux fins de la sécurité nationale (c’est-à-dire l’obliga-tion de rendre compte des ministres répondant de l’actiongouvernementale devant le Parlement).

RésuméAccountability in and for National Security Reg Whitaker and Stuart Farson

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scandal, accountability reforms have tended to focus onmatters of propriety. In the post-9/11 era, there are newchallenges from new types of security threats. With newapproaches to security, accountability must be adapted tothe new realities, involving both propriety and efficacy.The authors conclude that achieving accountability is anevolving but unfinished process.

In the debate over how best to scrutinize Canada’ssecurity and intelligence community, the question of whatthe various bodies and processes are meant to accomplishhas not been fully considered. The key question is whatpowers are available and how they are to be exercised.Three dimensions are of crucial importance: effectiveaccess to documents and people; the power to require fulland accurate responses; and the process, timing, substanceand independence of the reporting procedure.

Whitaker and Farson’s recommendations include twocentral points. First, because national security operationswithin government and between governments are becom-ing increasingly integrated, accountability mechanismsshould be integrated across institutional boundaries.Second, the role of Parliament in the accountabilityprocess needs to be enhanced, in close coordination withexisting and enhanced review and oversight bodies. Animportant caveat is that increased accountability shouldnot hinder the operations of those engaged in protectingCanada’s national security.

I n this study, Reg Whitaker and Stuart Farson exam-ine the complex system of accountability that appliesto government departments and agencies responsible

for Canada’s national security and recommend reforms tothe system.

Greater accountability in government today is widelysupported but imperfectly understood. The concept ofaccountability must be carefully analyzed, and its objec-tives clearly specified. Too often, seeking accountabilityhas had unanticipated and even perverse results. Nationalsecurity presents special challenges in this quest, particu-larly with regard to the extraordinary requirements forsecrecy and the complex relationship between intelli-gence collection and law enforcement.

In examining the issue of accountability in nationalsecurity, the authors focus on a number of conceptualdifficulties, such as the idea of “review” versus that of“oversight.” Review — often seen as occurring ex postfacto — has generally been the preferred option forenhancing accountability in Canada. Whitaker andFarson question whether this focus is appropriate innational security. They find that accountability has main-ly been sought for propriety and efficacy, different butinterrelated criteria. While review seems most appropriatewhen dealing with matters of propriety, oversight seemsmore appropriate when it is a question of efficacy. Thusthe authors insist upon widening the scope of howaccountability should be understood, to include bothreview and oversight. They also suggest that an impor-tant distinction should be made between accountabilityin (that is, within the executive branch, largely for con-trol purposes) and accountability for (that is, the processof accounting by responsible ministers for governmentactions in and to Parliament) national security.

The study provides an historical overview of how,when and why national security accountability mecha-nisms developed in Canada. Most often driven by public

Summary Accountability in and for National Security Reg Whitaker and Stuart Farson