Notes for remarks to the Arar Commission Policy Review - 2005

Notes for remarks to the Arar Commission Policy Review, by Joanne Weeks, Executive Director

November 18, 2005

Good morning. 

Thank you, Commissioner O'Connor, for this opportunity to provide input into your examination of options for a review mechanism for the RCMP's national security activities.

My comments this morning are in addition to those presented by the Communications Security Establishment Commissioner, the Right Honourable Antonio Lamer, retired Chief Justice of Canada, in his submission dated January 11, 2005.

By way of introduction, I have been a review practitioner for close to 20 years, including:

Over this period I have had ample opportunity to consider the role and functions of review generally and, in particular, the government's approach to reviewing Canada's security and intelligence agencies. 

Let me add for greater certainty, that when I use the term review, I mean ex post review, and not oversight.  To my mind, oversight can influence operational decision-making and risks diluting managerial responsibility for the outcome of those decisions.

Based on my own experience, I would like to leave you with one overall message today:  The model in place for reviewing Canada's security and intelligence agencies is a good one, and it works. 

Its main features were first set out in 1984 in the Canadian Security Intelligence Service Act in the provisions that created the Security Intelligence Review Committee.  In 1996, these features served as the basis for the inaugural CSE Commissioner's mandate established by Order in Council under the authority of the Inquiries Act. Later, in 2001, they were captured in law in Part V.1 of the National Defence Act, when both CSE and the Commissioner's Office were established in legislation.  These features include:

I believe that the Canadian model is flexible and can be readily adapted to particular circumstances, including an appropriate review mechanism for the RCMP's national security activities. 

Let me state that I am not arguing uniquely in favour of the status quo.  What I am saying is that the current model must be recognized for its strengths, which I believe include appropriateness, accountability and effectiveness.

Taking appropriateness first, the current model has three essential elements:  independence, authority and access. To my mind, these elements are the cornerstone of any effective intelligence review environment and must be preserved.

The benefit of maintaining the full independence of the review agency is obvious.   The agency must be allowed to operate free from interference by anyone, including officials in government, the agency under review, complainants or any other stakeholders. 

Effective review also requires having the authority and unimpeded access to people, information and operational activity.  In the case of the CSE Commissioner, he also has Inquiries Act powers that give him the authority to enter any premises, and examine all papers and documents. He may also summon any person and compel the production of evidence. He may administer an oath and issue a subpoena.

In his January submission, Commissioner Lamer wrote, and I quote:

"The most important aspect of establishing an independent review function for an organization has, in my opinion, not as much to do with what other review functions do, or how they interact, but rather more to do with the activities and risks associated with the organization to be reviewed" (end of quote)

Commissioner Lamer was referring to the importance of adapting the review model to fit the mandate, responsibilities and activities of the agency under review. The agencies in the security and intelligence community operate under quite different mandates and legislation.  Therefore, the activities and risks associated with these organizations also differ significantly.

CSIS, for example, maintains contact with Canadians on a daily basis through programs of varying degrees of intrusiveness designed to collect information about threats to Canada. Accordingly, SIRC's mandate must be broad and reflect the fact that the relationship between CSIS and people in Canada is constant, potentially intrusive and at the core of its activities.

CSE, on the other hand, has no such relationship with people in Canada.  Overall, its activities serve Canadian interests by collecting information and intelligence outside Canada's borders, using an array of sophisticated technologies.  CSE's activities and the lives of people in Canada intersect only in those instances where CSE intercepts a private communication, and handles it in accordance with the law. 

Appropriately, therefore, the CSE Commissioner's mandate is focussed on the lawfulness of CSE's activities, particularly as they relate to the privacy of persons in Canada.

I believe effective review only comes about as the reviewing body acquires and constantly improves its knowledge of the agency under review by gaining an understanding of its context, including its policies, practices and activities.

A dedicated review agency can hire specialized staff, establish policies and procedures, and set work plans as appropriate to the agency under review.

In the CSE Commissioner's office, we had the flexibility to shape our policies, procedures and activities to fulfil our mandate in the unique environment of the Communications Security Establishment. 

This flexibility to mould review activities to the nature of the agency under review is a clear benefit of the current Canadian review model, and deserves to be protected.

I would like to move now to another valuable feature of the existing review model: The model supports good governance by maintaining clear lines of accountability.

Under the existing model, the review function supports the Minister responsible for the agency under review.  In our case, the Commissioner sends his reports to the Minister of National Defence.  The accountability of the Minister to Parliament for the activities of CSE is clear and uncompromised. 

By providing the Minister directly with assessments of CSE's operational activities, identifying any problems and recommending action to correct them, the review function serves to strengthen the Minister's ability to exercise his responsibility for the direction and management of CSE as well as to account to Parliament.  Ministerial accountability is supported by, among other things, the tabling in Parliament of the Commissioner's public annual report.

Review successes are not always evident to outside observers.  The review function in government tends to fly under the radar, and its contributions to effective governance and accountability often – like many good news stories - fail to capture attention.  This makes it difficult for outside observers to develop a foundation of detailed knowledge on which to assess the effectiveness of review agencies.

The Commission for Public Complaints against the RCMP is not, of course, an external review agency.  It is solely a complaints function.  It does not fit the model that I have described.

However, I believe the review model established by Parliament for CSE – with its characteristics of appropriateness, accountability and effectiveness – could be used as a template to build a review function for the RCMP.

For this reason, Commissioner, I would encourage you to consider with great care any alternative models that are proposed to you. 

And I would particularly encourage you to look critically at any model that would affect the well-functioning review arrangements for CSE.

According to the consultation paper that this Commission distributed in October, some people have suggested the creation of a “super agency” to review all security and intelligence activities of the Government of Canada.

The disadvantages of such an approach would, I believe, far outweigh the advantages. These include:

  1. Inconsistency : with the logic behind the organization of Canada's security and intelligence community into a number of separate organizations.
  2. ACCESS : The super review body would potentially have access to more information about methods and sources than any one agency within the security and intelligence community itself – which would fly in the face of the "need to know principle".
  3. The lack of clarity about ACCOUNTABILITY. In reviewing the activities of organizations reporting to several Ministers, to whom would it report? If it were to report to Parliament, what would be the implications for the ability of Ministers to account in parliament for the activities of the intelligence agencies that report to them?
  4. Finally, the creation of a super review agency would also be highly disruptive to the community as a whole. Such disruptions should, in my view, only be introduced if there is a compelling need for it - in other words, if the existing model is clearly not working.

And as I have said before, I believe the existing model not only works - it works well.

To conclude, I would like to reiterate the views CSE Commissioner Antonio Lamer expressed in his submission last January. 

In that submission, he said he believed the preferred option would be for one body to review the national security activities of the RCMP and to investigate public complaints.  He wrote, and I quote:

“To my mind, this is the most effective and logical approach: effective, because it recognizes the unique mandate of the RCMP, and provides for a corresponding review body with the required expertise; and logical, because it limits the anticipated change to the CPC and the RCMP, the two organizations that are directly affected.  It does not impact on other organizations or review groups in Canada's security and intelligence community where change is neither sought after nor required.” (end of quote)

That is the end of my prepared remarks.  I would be pleased to answer any questions you may have.

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