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84-27E
THE CANADIAN
SECURITY INTELLIGENCE SERVICE
Prepared by:
Philip Rosen
Senior Analyst
Revised 24 January 2000
TABLE
OF CONTENTS
ISSUE
DEFINITION
BACKGROUND AND ANALYSIS
A. The Origins and Development
of the Security Intelligence Service
B. Abuses by the Security Service
C. The McDonald Commission's
Recommendations
D. The Canadian
Security Intelligence Service Act
E. The Controversial
Issues
F. 1984 to Present
PARLIAMENTARY ACTION
CHRONOLOGY
SELECTED REFERENCES
THE CANADIAN SECURITY
INTELLIGENCE SERVICE*
ISSUE
DEFINITION
In July 1984, the Canadian Security Intelligence Service
Act was proclaimed in force. It brought into existence a new civilian
security intelligence service, and terminated the previous Security Service,
which had functioned as part of the RCMP.
Passage of the Act was an attempt to bring the security
intelligence function under more effective control and made Canada at
that time one of the few western democracies to give its security intelligence
service an explicit statutory charter. The Act provides a defined mandate
for the operations of the agency; it interposes a system of judicially
authorized warrants in the agency’s use of intrusive investigative
techniques; and it establishes monitoring and review bodies, which purport
to ensure that the agency does indeed act within the limits of its mandate.
BACKGROUND
AND ANALYSIS
A. The Origins and Development of the Security Intelligence
Service
The origins of the CSIS Act may be found in the
1981 report of the Commission of Inquiry Concerning Certain Activities
of the Royal Canadian Mounted Police (the "McDonald Commission").
That Commission had been created in 1977 as a result of the revelation
of a series of apparently illegal acts and practices carried out by the
Security Service of the RCMP. The Commission was to determine the extent
and prevalence of investigative practices or other activities "not
authorized or provided for by law"; to report the facts of such practices;
and to advise the government what action should be taken to deal with
them; and to advise the government generally on necessary or desirable
changes in "policies and procedures regarding national security."
The Security Service the McDonald Commission began to
study in 1977, like many other Canadian institutions, developed gradually
and incrementally. It was subsumed within the RCMP, and had no distinct
statutory basis, deriving its authority from a power given to the Governor
in Council in the Royal Canadian Mounted Police Act to assign certain
functions to the Force. It was not until 1975 that the Service was given
an explicit mandate, and even that mandate consisted only of a cabinet
directive drafted in quite broad terms.
The Security Service had its genesis in certain duties
assigned in 1864 by Sir John A. Macdonald to what was to become the Dominion
Police Force. These duties included such things as providing security
for government buildings, and providing information and intelligence on
threats to Canada’s security, such as the Fenians. The North West
Mounted Police assumed similar functions in the west.
The security intelligence role of the federal police
gradually grew after Confederation through to the first World War, in
response to labour unrest, anarchism, and the growth of communism. This
role intensified between the world wars. But it was not until the end
of the second World War that the security function was removed from the
Criminal Investigation Branch of the RCMP, which had been formed in 1920.
The 1946 Gouzenko case led to a new awareness of the
necessity for stricter security in government institutions, and for specific
counter-espionage and counter-intelligence capabilities to deal with the
new aggressive nature of East Bloc activities. In 1946 the Special Branch
was created: its officer in charge reported to the Commissioner of the
RCMP. The Branch had the specific responsibility of providing intelligence
on espionage, subversion, and of ensuring that federal institutions were
staffed by loyal and trustworthy persons. By 1956, the Special Branch
had been raised to the directorate level within the RCMP, under the control
of an Assistant Commissioner. Finally, in 1970, the Branch was renamed
the Security Service under the control and management of a civilian (i.e.
not a member of the RCMP) Director General (equivalent to a deputy commissioner)
who reported to the Commissioner and to the Solicitor General. (In 1966
the RCMP had become the responsibility of the Solicitor General, when
that position was raised to full ministerial status. Prior to that year,
the force had been under the authority of the Minister of Justice.)
The 1970 reorganization was principally the result of
the 1969 Report of the Royal Commission on Security (the "Mackenzie
Commission"). That commission had been formed in 1966 following the
widely publicized case of a security lapse in a federal institution. Its
mandate was to look into security procedures in government, but it was
also to inquire generally into the question of Canada’s national
security. The principal recommendation of the Mackenzie Commission, based
upon this last element of its mandate, was that a separate civilian security
agency be formed. The commission found that it was not appropriate for
a law enforcement body like the RCMP to be involved in security intelligence
work. Such functions were found to be incompatible with the role of ordinary
police; and the Special Branch was found to lack sufficient sophistication
and powers of analysis, drawing as it did only on members of the force,
to fully discharge the security intelligence role. The commission also
recommended legislation to deal with the use by the security agency of
intrusive investigative techniques, and an improved system of security
screening, including an appeal process.
The government rejected "civilianization" of
the Special Branch. It did, however, determine to make the security intelligence
function "increasingly separate in structure and civilian in nature,"
in the words of the Prime Minister, within the RCMP. Hence the creation
of the Security Service and the appointment of a civilian Director General.
The government also pledged to bring more civilians into the Security
Service and thereby expand its expertise and increase its flexibility.
Another partial response to the Mackenzie Commission took place in 1974,
when s. 16 of the Official Secrets Act was passed. That section
allowed the Solicitor General to authorize the interception or seizure
of communications if satisfied that conduct being investigated fell within
a broad definition of activity inimical to national security - including
espionage, sabotage, activities of foreign intelligence bodies and political
violence.
B. Abuses by the Security Service
The Security Service in the early 1970s was in a precarious
position. Its members retained all the extraordinary powers accorded to
peace officers. It also remained almost exclusively composed of RCMP members
who had risen through the ranks. For the force, tight-knit, highly disciplined
and loyal, strenuously resisted the infusion of civilian personnel. By
the end of the decade there was not a single civilian in an officer-equivalent
position in planning or operations of the Security Service.
Thus the service’s post-1970 personnel remained
essentially similar. But organizationally they found themselves increasingly
independent in matters of policy, budget, and operations. Service employees
had the best of both worlds - police powers and a large degree of autonomy
from the police command structure. This independence was reinforced by
the government’s policy with respect to the RCMP - "non-interference."
Politicians were not to be involved in controlling the police or directing
their operations. This is a laudatory and effective principle when one
is dealing only with the police who operate in a public context of checks
and balances. It is not, however, ideal for a security intelligence agency
which, perforce, acts in secrecy; and which, indeed, requires a degree
of political control. Because the RCMP was both a police force and a security
agency, abuses by the latter element were not immediately apparent.
It took the mere pressure of events to disturb the precarious
position of the Security Service. The 1970 October Crisis stunned the
government, which found itself with inadequate information as to the nature
and scope of Quebec separatism. The government requested the RCMP to undertake
a "proactive" strategy in this area - to try and get advance
information as to the intentions and activities of nationalist organizations
and, if possible, to prevent or "counter" disruptive acts. This
the Security Service proceeded to do. It embarked on an extensive campaign
of intelligence-gathering, infiltration, harassment and disruption directed
at virtually all stripes of nationalist sentiment in Quebec. In many circumstances,
the Service committed clearly illegal acts. Three of the most spectacular
examples were: the burning down of a barn to prevent a meeting of militant
nationalists and American radicals; a break-in at the offices of a Montreal
left-wing news agency, followed by the theft and destruction of some of
their files; and a break-in and theft of the membership lists of the Parti
Québécois. Operations such as these had not, the McDonald Commission found,
been ordered by the government. They were generated from within the Service
in response to government directions to find out more about separatism.
Quite aside from being illegal, these operations showed a lack of discrimination
between true threats and legitimate dissent. None had any major effect
on the organizations targeted, and none brought in intelligence of much
importance.
Although the most spectacular acts of the Security Service
were committed in Quebec, they certainly were not limited to that province.
Throughout Canada, the Service engaged in a whole series of illegal or
improper activities, particularly in relation to left-wing or radical
groups. So-called "dirty tricks" were used against perceived
threats to national security. In 1975, at the behest of the RCMP, a cabinet
directive was issued, setting out the Service’s mandate. But this
directive merely restated the status quo, permitting the Service
to "discern, monitor, investigate, deter, prevent and counter"
persons engaging in subversive or other activity inimical to national
security.
The abuses of the Security Service were not limited to
the 1970s, or to excesses in "countering" nationalist or radical
threats. It was revealed by the McDonald Commission that some activities
such as surreptitious entry, mail-opening, and the gaining of access to
supposedly confidential information in the possession of the government,
had gone on for many years, in relation to various aspects of national
security - from espionage and counter-intelligence to subversion. In many
cases, the Commission concluded, the investigative power used was needed
but was not authorized by law. The Commission also found that it was not
only the Security Service that had engaged in this "institutionalized"
wrongdoing. The Criminal Investigation branch also had a long history
of abuses in this area.
C. The McDonald Commission's Recommendations
During the four years of its existence, the McDonald
Commission conducted an exhaustive review of the Security Service. It
catalogued the many illegalities and improprieties. It found, on the whole,
that the supposed political masters of the Service were ignorant of its
misdeeds. But this exoneration was also an inherent criticism in that
the structure of control and accountability was so weak as to allow these
things to happen. In the same way, these matters had come to light not
by reason of review or audit but as a result of fortuitous disclosures
by disgruntled former members of the Service and of pressure by the press
and the opposition.
The report of the McDonald Commission was highly critical
of the Security Service. While Canada’s basic security needs, particularly
in dealing with espionage and the activities of foreign intelligence agencies,
had been adequately dealt with, the Commission found that the Service
lacked sophistication and analytical ability. In particular, there was
an inability to distinguish subversion from dissent and a concomitant
anti-left wing bias. The Service also lacked a precise mandate, effective
political control and adequate review of its activities.
The principal recommendation of the report was that an
entirely separate civilian security agency be formed. The reasons were
much like those posited by the Mackenzie Commission. There was a need
for a reorientation toward information-gathering and analysis rather than
deterring or countering. New personnel were needed. Organizationally,
the new agency would have to be politically accountable and subject to
strict review. It would not be appropriate to impose this on the RCMP.
Law enforcement and security work are incompatible, the report concluded.
The proposed new agency would have a statutory mandate,
consisting of a definition of the threats to Canada’s security it
would be permitted to investigate. The definition would have four elements:
espionage and sabotage, foreign interference; political violence and terrorism;
and revolutionary subversion - activities directed towards the destruction
of the democratic system. The report also recommended that the agency
be expressly forbidden from investigating lawful advocacy, protest or
dissent. It would also not have the authority to "enforce" security.
The Commission also determined that, in order to be effective,
the agency would have to have access to certain intrusive investigative
techniques, such as electronic surveillance, surreptitious entry, mail-opening,
and the ability to obtain confidential information. But these investigative
methods would only be used pursuant to judicial warrant, which would only
be issued where a court was satisfied that the matter fell within the
mandate. Further, they would not be available against "subversive"
threats.
The Commission’s agency would be under the management
and control of a Director General, who would in turn be responsible to
the Solicitor General. This minister would play a significant role in
the operation of the agency. He would issue directives having to do with
its functioning, and would have to authorize applications for warrants.
To ensure compliance with the law, the Commission recommended substantial
external review of the agency’s activities. First there would be
the Advisory Committee on Security and Intelligence - an appointed three-member
body which would submit operations to continuous review to ensure legality
and propriety. It would also investigate complaints, and report to the
Minister and Parliament. The second fundamental element of review would
be a special joint parliamentary committee. The committee, appointed for
the life of a Parliament, would be the ultimate control on the agency.
In conjunction with the advisory committee it would, on behalf of Parliament,
attempt to ensure that the agency observed its mandate.
D. The Canadian Security Intelligence Service
Act
Immediately after the August 1981 release of the McDonald
Commission Report, the government indicated its acceptance of the most
fundamental recommendation - the creation of a civilian security service.
At the ministry of the Solicitor General, a special transitional group
was established to translate the Commission’s recommendations into
legislation.
In May 1983, during the first session of the 32nd Parliament,
Bill C-157 was introduced in the House of Commons. That bill would have
established the Canadian Security Intelligence Service (CSIS), based on
the framework suggested by the McDonald Commission. The bill also made
substantial and significant alterations and additions to that framework.
Almost immediately, it became the object of critical comment. It was alleged
to be an attack on civil liberties, giving the proposed service extremely
wide powers, insulating the government from accountability, and failing
to institute a precise mandate or a workable review system. So vehement
was public opposition that the government decided against proceeding to
second reading, and instead referred the subject matter of the bill to
a special committee of the Senate. That committee held hearings throughout
the summer of 1983, exposing a broad cross-section of public opinion on
the bill. It issued its report in November 1983, recommending over 40
changes to the bill so that, in the words of the committee, there might
be "a more appropriate balance between collective and individual
security."
Following the report, Bill C-157 was allowed to die on
the order paper. In the second session of the 32nd Parliament a new Bill,
C-9, was introduced which incorporated virtually all the recommendations
of the Senate Committee. Given first reading in January 1984, Bill C-9
was referred to the Justice Committee of the House of Commons in March,
passed third reading in June, and was proclaimed in force in July and
August 1984. The legislation, as passed, is virtually identical to the
bill that was introduced in January.
The central provision of the legislation is the definition
of "threats to the security of Canada" in s. 2, which comprises
the basic limit on the activities of the CSIS. The four elements recommended
by the McDonald Commission remain:
-
activities directed
toward undermining by covert unlawful acts, or directed toward or
intended ultimately to lead to the destruction or overthrow by violence
of, the constitutionally established system of government in Canada.
The definition also goes on to stipulate that lawful
advocacy, protest or dissent is not within the scope of threats to security.
The basic function of the service is stated in s. 12
- to investigate, collect, analyze, and retain information and intelligence
on security threats. Bill C-157 contained a further provision which expressly
permitted the CSIS to "remain informed" about the current economic,
social and political climate, from public sources of information. That
section at first appeared in Bill C-9, but was eventually deleted as surplusage.
By virtue of s. 13, the CSIS is to provide security assessments with respect
to individuals to be employed in the government. Finally, by s. 16, the
CSIS is given the role of assisting in the collection of "foreign
intelligence," intelligence gained from investigation or surveillance
of persons who are neither Canadian citizens nor permanent residents,
with respect to defence or international affairs. As a result of the Senate
committee’s recommendations, this function has been more sharply
focused on non-Canadians, and may only be undertaken at the written request
of the Minister of National Defence or the Minister of Foreign Affairs,
with the consent of the Solicitor General.
Under Part II of the Act (ss. 21-28), the Federal Court
may issue warrants to the service to carry out its functions under ss.
12 and 16. Such warrants allow the full range of investigative techniques
to be used, with the exception of access to confidential census data maintained
by Statistics Canada. The warrant process contains many safeguards and
information requirements that were absent from Bill C-157, but which were
added on the recommendation of the Senate Committee. Essentially, they
parallel the Criminal Code requirements for warrants to allow electronic
surveillance. A one-year limit is placed on warrants, with the exception
of those obtained to investigate a paragraph (d) threat - subversion -
which last only 60 days. This provision was added in the House Justice
Committee, a partial recognition of the McDonald Commission recommendation
that subversion not be the subject of intrusive investigative techniques
at all. All warrants are renewable, on re-application to the court.
The Act assigns management and control of the CSIS to
the Director, a Governor in Council appointee. The Solicitor General is
given an active supervisory role. Originally, Bill C-157 had adopted a
model borrowed from similar Australian legislation, which would have given
the Director the final say on targeting and the release of information,
and would not have given the Minister any operational role whatsoever;
the ostensible purpose of these provisions was to ensure that the CSIS
could not be used for partisan purposes. The provisions elicited considerable
public outcry on the ground that they reduced the direct political responsibility
of the Minister for the agency in order to avoid a fairly remote danger.
They were roundly criticized by the Senate Committee. The Act provides
that the Minister has an override and must approve all warrant applications.
Another provision of Bill C-157 which aroused criticism was the defence
given to agency employees for such reasonable acts done in pursuance of
their duties as were "reasonably necessary." In the Act, this
is replaced by s. 20, which gives employees the protection afforded by
law to peace officers.
Two aspects of Bill C-157 which survived its revision
into the Act had to do with control and review. The Act establishes the
office of Inspector General (s. 30) and the Security Intelligence Review
Committee (SIRC, s. 34). The former officer, appointed by the Governor
in Council, is to monitor CSIS operations and to report to the Deputy
Solicitor General and the SIRC on the legality and propriety of those
operations. The SIRC is a committee to be composed of up to five Privy
Councillors appointed by the Governor in Council after consultation by
the Prime Minister with opposition leaders in the House of Commons. It
is to conduct a review of CSIS operations and to report to the Minister
and Parliament on them. It also has a variety of investigative duties.
It deals with complaints about CSIS activities and acts as an appeal board
with respect to security assessments and security-influenced decisions
under the Citizenship and Immigration Acts.
A final aspect of the legislation, which was not dealt
with by the McDonald Commission, is what was formerly Part IV of the Act
(ss. 56-61), now known as the Security Offences Act. This
Act addresses police and prosecutorial authority to deal with security-related
offences. It gives the RCMP "primary responsibility" over the
investigation of such offences, in pursuance of which they may enter into
agreements with other police forces. The Security Offences Act
also gives the federal Attorney General the power to prosecute security
offences and, by fiat, to intervene in, and take over, provincial prosecutions
of such offences. Despite considerable provincial criticism of the Act
as an impingement on a traditional provincial area of jurisdiction, it
remained essentially unchanged as it went through the legislative process.
E. The Controversial
Issues
The legislation which emerged from Parliament is far
from being the product of consensus. Indeed, the committee proceedings
and report stage dealing with Bill C-9 were extremely contentious. Both
opposition parties vociferously opposed fundamental elements of it, giving
voice to substantial public concern.
Perhaps the most fundamental concern had to do with the
removal of the security function from the RCMP and the creation of a civilian
service. Several provincial attorneys general, the Progressive Conservative
party, some civil liberties groups, and, eventually the New Democratic
Party, opposed the change. The principal contention was that, given a
clear mandate and efficient review, the RCMP was still best equipped to
discharge the security function, having discipline, a long and honourable
tradition, an established system of contacts, and being virtually immune
from penetration by foreign agencies. Others took the position that the
defects in the legislation were so patent that it would be better to maintain
the status quo.
There was also considerable opposition to the mandate
given to the CSIS. This opposition had reference not only to the breadth
of the definition, but to the whole idea of a security agency dealing
with matters such as "subversion" or "foreign influenced
activities." The Canadian Civil Liberties Association, for example,
took the position that there was no need for more than a relatively small
agency to deal with the distinct threats of espionage or sabotage from
foreign nations. Regular law enforcement could deal with the other elements
of threat, when the criminal law was contravened.
The scope of the threats definition is also quite controversial.
Some contend that it is so broadly drafted as to bring within its scope
a variety of acts having nothing to do with true security. The government
took the position that the definition must be read in the context of those
provisions which protect lawful dissent and which limit the agency to
what is "strictly necessary" and in the context of the new system
of monitoring and review. Given this context, it is said, the definition
is reasonable. The "foreign intelligence" function of the agency
(s. 16) is also quite contentious. Many find it inherently unreasonable
to submit foreign nationals to surveillance if they do not constitute
a security threat, but can merely provide Canada with useful information
having to do with defence or international affairs. Another area of concern
is the scope of the warrant system, which gives the CSIS access to virtually
any investigative technique from surreptitious entry to access to doctor-patient
confidences.
Most of the remainder of the Act is not particularly
contentious, save for two areas having to do with review of the agency.
The first has to do with the access to information by the Inspector General
and the SIRC. Both bodies are given access to all information in the possession
of the CSIS except cabinet documents. These exceptions (see ss. 31(2)
and 39(3)) first appeared in Bill C-157 and have been almost universally
condemned, critics taking the position that the review bodies should have
access to all documents held by the agency in order to fully discharge
their important functions. The Senate Committee recommended deletion of
the exceptions. In the House Justice Committee, some government members
joined the opposition to vote to remove them. They were, however, restored
at report stage in the House. The government took the position that the
cabinet system requires utmost confidentiality.
The other area is direct parliamentary oversight of the
CSIS. Recommended by McDonald, it was absent from Bill C-157. The Senate
committee had also rejected it as impractical, duplicative of the SIRC,
and subject to weaknesses in preserving secrecy. Both opposition parties
supported the idea of a special parliamentary committee, with access to
agency information, in order that Parliament could be assured that the
CSIS was acting within its mandate. They were not confident that Parliament
would get a full picture of agency operations from the SIRC, and pointed
to the examples of the Federal Republic of Germany and the United States,
to show that such a committee could be workable and successful. The government
was firm on this matter, however, and refused to add direct parliamentary
oversight.
F. 1984 to Present
On 17 August 1987, the Federal Court of Appeal,
by a two-to-one majority, held that the warrant-granting provision of
the Canadian Security Intelligence Service Act (s. 21) is
not in violation of the Canadian Charter of Rights and Freedoms.
In this case, an individual (Atwal), accused of involvement in an attack
in B.C. on a Punjabi Cabinet Minister, applied for access to a sworn affidavit
in support of a warrant application in Federal Court. Heald J. on 30 April
1987 upheld s. 21 of the CSIS Act under the Charter and denied
access to the affidavit. On appeal, Mahoney J. and MacGuigan J. not only
upheld s. 21 under the Charter, but reversed Heald J. and allowed
access to the affidavit with the names of CSIS agents and informants deleted.
On 11 September 1987, Mr. T.D. Finn resigned
as Director of CSIS and was replaced by J. Reid Morden, former Assistant
Secretary to the Cabinet for Foreign and Defence Policy. Mr. Finn
resigned when it was revealed in Federal Court that day that the affidavits
behind the warrant in the Atwal case contained inaccuracies and irregularities.
The Solicitor General on 30 November 1987 released
the Report of a three-member independent advisory team chaired by Gordon
Osbaldeston, and announced his acceptance and implementation of its recommendations.
The Report was critical of CSIS and recommended changes in relation to
all facets of the service. More particularly, criticisms and recommendations
were made about the excessive internal compartmentalization of CSIS operations,
inadequate reliance on open sources, under-developed analytical capacity,
lack of clear policy directives on targeting, the use of human sources
and of intrusive investigative techniques, and inadequate training programs.
The Report urged the re-opening of the CSIS staff college and the elimination
of the Counter Subversion Branch.
On 29 March 1988, the Solicitor General released
the SIRC’s report to him of 25 March 1988, on CSIS’s use of
its investigative powers with respect to the labour movement. The Committee
concluded that neither Marc André Boivin, one of CSIS’s human sources,
nor CSIS had targeted union members or unions for their labour activities
as such. The report was critical of CSIS for retaining Mr. Boivin’s
services after they had ceased to be useful, for not having in place a
policy to determine when the use of human sources was reasonably necessary,
and for maintaining, adding to and utilizing R.C.M.P. Security Service
files in a way that may have been beyond the agency’s mandate as
set out in the CSIS Act. The report indicated the SIRC’S satisfaction
that both the Solicitor General and the Director of CSIS had moved expeditiously
to deal with these difficulties.
In the Thomson case, an individual (Thomson) had
been refused a position with the Department of Agriculture because of
an unfavourable security assessment by CSIS. He appealed this decision
to SIRC which conducted a hearing and recommended that he be given a positive
security clearance. The Deputy Minister of Agriculture rejected this recommendation.
On 7 March 1988, the Federal Court of Appeal ruled that because of
the statutory structure of the CSIS Act, the SIRC’s recommendations
are binding on government. It also ruled that, because the Deputy Minister
of Agriculture was exercising "administrative" powers, the Federal
Court of Appeal did not have jurisdiction to make a binding ruling in
this matter. On 17 June 1988, Dubé J. of the Federal Court, Trial
Division, expressed his respect for the reasoning in the Federal Court
of Appeal’s obiter opinion, but declined to follow it. He
held that the recommendations made by the SIRC in security clearance cases
are not "decisions" and hence not binding on government. Dubé
J.’s ruling was appealed to the Federal Court of Appeal. On 17 May
1990, a differently constituted bench of the Federal Court of Appeal overruled
Dubé J.’s decision and said he was bound by the initial appellate
ruling. The Thomson decision was followed by Joyal J. on 4 October
1990 in the Kwan Lihuen case, which involved the removal of a security
clearance from a Chinese language translator employed by CSIS. The Supreme
Court of Canada on 25 January 1991 granted leave to appeal in the Thomson
case. In reasons handed down in the Thomson case on 13 February
1992, the Supreme Court of Canada ruled that the SIRC’s recommendations
in security clearance cases are not binding on government.
On 26 January 1989, the Federal Court of Appeal rendered
its decision in the Russell case. In this case, an individual (Russell)
wanted to know if he had been the subject of investigation by CSIS. The
SIRC advised Russell that CSIS had done nothing improper or illegal. In
a decision rendered from the Bench, Pratte J.A. ruled that the March 1988
letter from the SIRC to Russell was merely a "report of findings,"
not a "decision," and hence not subject to judicial review.
On 9 March 1989, Stephen Ratkai, who had pleaded
guilty to charges under the Official Secrets Act that he had engaged
in espionage activities on behalf of the Soviet Union, was sentenced to
nine years’ imprisonment.
On 23 March 1989, Marc André Boivin instituted litigation
in the Federal Court against CSIS, the SIRC and the Solicitor General
in which he claimed damages in the amount of half a million dollars. He
sued CSIS for having revealed his activities on its behalf to the Sûreté
du Québec, and the SIRC for having reported publicly on his activities
without giving him an adequate opportunity to present his side of the
events.
On 15 May 1989, the Canadian Civil Liberties Association
initiated litigation in the Ontario Court (General Division) in which
it requested a judicial declaration that certain provisions of the CSIS
Act were in violation of the Charter of Rights and hence of no force
or effect. Mr. Justice Potts of the Ontario Court (General Division) rendered
a judgment on 16 August 1990 in which he concluded that the Canadian
Civil Liberties Association had legal standing to continue its litigation.
In reasons for judgment released on 25 March 1992, Mr. Justice Potts ruled
that the CSIS Act was not in violation of the Charter of Rights
and Freedoms. The Ontario Court of Appeal, by a 2 to 1 majority, dismissed
the Canadian Civil Liberties Association appeal in a 9 July 1998 decision.
The Supreme Court of Canada refused to grant leave to appeal in this
case.
In the Chiarelli case, the Federal Court of Appeal
decided on 23 February 1990 that the provision of the CSIS Act
that allowed the SIRC to exclude complainants and their counsel from certain
parts of its hearings was in violation of the Charter of Rights.
The Supreme Court of Canada granted leave to appeal in this case. On 26
March 1992, the Supreme Court of Canada ruled that the provision of the
CSIS Act allowing the SIRC to exclude complainants and their counsel
from certain parts of hearings was not in violation of the Charter.
On 14 August 1990, the SIRC issued a report and
recommendations involving the Canadian Armed Forces and Ms. M.D. Douglas,
a former member. In this report, the SIRC was critical of the Forces for
the way in which an investigation of Ms. Douglas’s sexual orientation
had been carried out and her security clearance withdrawn. Concluding
that Ms. Douglas was not a security risk, it recommended that her security
clearance be restored and that she be reinstated in her former employment.
This decision was appealed to the Federal Court of Appeal.
PARLIAMENTARY ACTION
A parliamentary role in the oversight of CSIS operations
is provided for in s. 53 of the Act, which stipulates that the Solicitor
General must lay the annual report of the SIRC before Parliament. The
Standing Orders of the House of Commons deem any report required by law
to be tabled in Parliament to be permanently referred to a committee of
the House. For SIRC reports, this is the Standing Committee on Justice
and Human Rights.
Another source of parliamentary input into the assessment
of the legislation are s. 56 of the CSIS Act and s. 7 of the Security
Offences Act, which were recommended by the Senate Committee. These
sections provided that a committee of the House or of the House and the
Senate was to conduct a review of the operation of the Acts within five
years of their coming into force. That committee was to make a report,
which would include "a statement of any changes" it recommended.
The House of Commons set up a Special Committee on 27 June 1989 to
conduct a review of the CSIS Act and the Security Offences Act.
That Committee reported its findings and 117 recommendations on 24 September
1990.
The Committee’s report, entitled In Flux but
not in Crisis, generally concluded that the Canadian security and
intelligence system was sound and that any reforms should be based on
the continuation and extension of already-established institutions. Its
recommendations dealt with the definition of mandates, labour relations
and human resources, the review roles of the Inspector General and the
SIRC, the complaints roles of the SIRC and the RCMP Public Complaints
Commission, and the establishment of a parliamentary sub-committee to
monitor and review the security and intelligence community. The Committee
called upon the government to respond to its report and recommendations
within 150 days.
The government tabled its response, entitled On Course:
National Security for the 1990’s, on 25 February
1991. The government set out its belief that legislative changes in the
CSIS Act and the Security Offences Act were not needed.
It further asserted that it was unwilling at that time to contemplate
structural changes to the national security model in place. The response
did undertake that, starting in 1992, the Solicitor General would at the
time of tabling of Main Estimates also provide Parliament with a statement
of national security issues facing Canada. This statement was to be accompanied
by a public Annual Report, by the Director of CSIS, which would discuss
the "threat environment." The government accepted the
Committee recommendation that there be another parliamentary review of
the CSIS Act and the Security Offences Act, and undertook
to arrange for it to begin in 1998.
On 26 February 1991, a debate was held on an Opposition
motion that the House of Commons concur in the Committee’s report
"In Flux but not in Crisis." The House adjourned that day without
coming to a vote.
The House of Commons Standing Committee on Justice and
Solicitor General, pursuant to a recommendation made in "In Flux
but not in Crisis," established on 13 June 1991 a permanent Sub-Committee
on National Security. The Sub-Committee held its first meeting on 18 June
1991.
In fulfillment of a commitment made by the government
in "On Course: National Security for the 1990’s," the Solicitor
General made his first Annual Statement on National Security and tabled
the CSIS Director’s first Public Report in the House of Commons on
19 March 1992.
The Solicitor General on 11 April 1994 made his Annual
Statement on National Security and at the same time tabled in the House
of Commons the CSIS Director’s Public Report 1993. Two days
later, on 13 April 1994, the Solicitor General, during an appearance on
Main Estimates before the House of Commons Standing Committee on Justice
and Legal Affairs, provided for the first time a three-figure breakdown
of CSIS’s budget. Under the 1994-95 Main Estimates, CSIS was to be
allocated $206,834,000, to be made up of $115,454,000 for personnel, $17,196,000
for construction or land acquisition, and $74,184,000 for other subsidies
and payments. These budgetary details were made public for the first time.
The House of Commons Standing Committee on Justice and
Legal Affairs on 3 May 1994 adopted a motion re-establishing a Sub-Committee
on National Security.
On 14 August 1994, there were public allegations that
a CSIS human source, Grant Bristow, had played a prominent role in the
establishment and activities of the Heritage Front. That day, the SIRC
undertook to investigate these and related public allegations. Because
of subsequent public developments, the House of Commons Sub-Committee
on National Security on 29 August 1994 announced that it would be investigating
these events.
The SIRC Report to the Solicitor General on CSIS’s
involvement in the Heritage Front was released by the Minister on 15 December
1994. The report confirmed that CSIS had had a human source within the
Heritage Front who had been properly targeted and had provided valuable
security intelligence. It concluded that the source, whom it did not identify,
had played a support, rather than a leadership, role in the founding and
running of the Heritage Front. It also concluded, after lengthy consideration,
that many of the public allegations were either exaggerated or untrue,
though it expressed some concern about the "borderline" activities
of the source. The SIRC recommended that more complete policy guidance
be developed for the placement and control of CSIS human sources.
On 16 December 1994, members of SIRC appeared before
the House of Commons Sub-Committee on National Security to answer questions
about the report on CSIS and the Heritage Front.
On 28 March 1995, the Solicitor General made his Annual
Statement on National Security and at the same time tabled in the House
of Commons the CSIS Director’s Public Report 1994. For the
first time, the Public Report contained a Program Outlook covering the
period until the end of the 1997-98 fiscal year. This document projected
that CSIS’s budget would decline from $207 million to $159 million
and its personnel component from 2,366 Full Time Equivalents (FTEs) to
2,021.
The House of Commons Sub-Committee on National Security
tabled its report on document and personnel security on 4 October 1995.
Its five recommendations proposed that the Government Security Policy
be strengthened and that it be extended to Ministers’ offices. In
its 28 February 1996 response to the report, the Government accepted the
thrust of the Sub-Committee’s recommendations.
On 19 June 1996, the House of Commons Sub-Committee on
National Security tabled its Report on the "Heritage Front Affair."
The Sub-Committee released a majority report, a joint dissenting opinion,
and two dissenting opinions, based on its review of the December 1994
SIRC Report on these matters
On 1 August 1996, Heald J. of the Federal Court ruled
in Zundel that there was well-founded apprehension of bias in relation
to the SIRC’s consideration of a citizenship case of a person on
whom it had commented adversely in its Heritage Front Affair Report. This
decision was appealed by the government to the Federal Court of Appeal.
In the meantime, Bill C-84, amending the Citizenship Act and the
Immigration Act to provide an alternative process in situations
analogous to that in Zundel, was passed by the House of Commons
and the Senate, and received Royal Assent on 25 April 1997. The Federal
Court of Appeal on 27 November 1997 reversed Heald J’s decision in
Zundel. On 30 April 1998, the Supreme Court of Canada denied
leave to appeal in the case.
CHRONOLOGY
1946 - With the increase of security functions assigned
to the RCMP, personnel working in that area were for the first time
organizationally separated from the Criminal Investigations Branch into
the Special Branch.
1956 - The Special Branch was elevated to the Directorate
level within the RCMP, under the command of an Assistant Commissioner.
1969 - The Royal Commission on Security recommended
creation of a civilian security agency. The government decided against
this, but promised to make the Special Branch more separate and increase
the civilian staff.
1970 - The Special Branch became the Security Service,
under the direction of a civilian Director General, Mr. John Starnes.
October 1970 - James Cross was kidnapped; Pierre Laporte
was kidnapped and murdered. The War Measures Act was proclaimed.
1971-74 - Particularly, but not exclusively, in Quebec,
the Security Service undertook a series of acts, many apparently illegal,
to neutralize radical and separatist groups.
27 March 1975 - The federal cabinet issued a directive
governing the operations of the Security Service. It remained secret
until 1978.
30 March 1976 - Cpl. R. Samson, on trial for an unrelated
incident, revealed his participation in Operation Bricole in 1972 (a
break-in and theft of files).
June 1977 - Former Security Service staff-sergeant
Donald McCleery revealed to officials from the Department of Justice
the details of other operations, including Operation Ham (the break-in
and theft of PQ membership lists).
6 July 1977 - Solicitor General Fox announced the appointment
of Mr. Justice D.C. McDonald to head a commission of inquiry into the
allegations of RCMP wrongdoing.
June 1981 - Following the report of its own inquiry,
the government of Quebec laid charges against 17 current or former RCMP
members.
25 August 1981 - The final report of the McDonald Commission
was made public.
18 May 1983 - Bill C-157 was given first reading in
the House of Commons during the 1st Session of the 32nd Parliament.
29 June 1983 - The subject matter of Bill C-157 was
referred to a special committee of the Senate, which in its November
report recommended substantial amendment of the bill.
18 January 1984 - Bill C-9 was given first reading
in the House of Commons during the 2nd Session of the 32nd Parliament.
The bill incorporated most of the changes recommended by the Senate
Committee.
21 June 1984 - After three months in committee, Bill
C-9 was given third reading and passed by the House. Shortly thereafter
it was passed by the Senate.
16 July 1984 - All but Part II of the CSIS Act
was proclaimed in force.
31 August 1984 - Part II of the CSIS Act, which
deals with warrants, was proclaimed in force.
29 November 1984 - The first members of the SIRC were
appointed, under the chairmanship of Ronald Atkey, a former Conservative
cabinet minister.
15 February 1985 - Richard Gosse, former deputy attorney
general of Saskatchewan, was appointed first Inspector General under
the CSIS Act.
22 July 1987 - The Solicitor General announced the
establishment of a three-member independent advisory team to report
by 30 October 1987 on the implementation of the SIRC’s recommendations
concerning counter-subversion and civilianization.
30 July 1987 - The Senate Special Committee on Terrorism
and the Public Safety released its Report.
11 September 1987 - T.D. Finn resigned as first Director
of CSIS and was replaced by J. Reid Morden.
30 November 1987 - The Solicitor General released the
independent advisory team’s report and announced his acceptance
of its recommendations.
29 March 1988 - The SIRC issued its Special Report
on CSIS activities in relation to the labour movement and on the actions
of Marc André Boivin.
27 June 1989 - The House of Commons established a Special
Committee to conduct the five-year review of the provisions and operation
of the CSIS Act and the Security Offences Act. This Committee
was to report by 16 July 1990.
28 June 1989 - The Special Committee of the Senate
on Terrorism and Public Safety tabled its second and final report.
24 September 1990 - The House of Commons Special Committee
on the Review of the CSIS Act and the Security Offences Act
tabled its report entitled In Flux but not in Crisis."
25 February 1991 - The government tabled "On
Course: National Security for the 1990’s," its response to
the Report of the House of Commons Special Committee on the Review of
the CSIS Act and the Security Offences Act.
26 February 1991 - A debate on a concurrence motion
in the Report of the Special Committee on the Review of the CSIS
Act and the Security Offences Act was held in the House of
Commons.
13 June 1991 - The House of Commons Standing Committee
on Justice and Solicitor General established a Sub-Committee on National
Security.
18 June 1991 - The Sub-Committee on National Security
met for the first time.
3 May 1994 - The House of Commons Standing Committee
on Justice and Legal Affairs adopted a motion re-establishing its Sub-Committee
on National Security.
14-29 August 1994 - A number of public allegations
were made about the role of a CSIS human source, Grant Bristow, in the
establishment and activities of the Heritage Front. The SIRC decided
to investigate public allegations concerning CSIS and the Heritage Front.
29 August 1994 - The House of Commons Sub-Committee
on National Security announced an investigation into public allegations
of a CSIS-Heritage Front link.
15 December 1994 - The SIRC Report on CSIS’s activities
within the Heritage Front was made public by the Solicitor General.
4 October 1995 - The House of Commons Sub-Committee
on National Security tabled its Report Document and Personnel Security.
19 June 1996 - The House of Commons Sub-Committee on
National Security tabled its Report on the Heritage Front Affair.
1 August 1996 - Heald J. of the Federal Court rendered
his judgment in Zundel.
25 April 1997 - Bill C-84 received Royal Assent.
3 October 1997 - McGillis J. of the Federal Court rendered
a judgment critical of attempts by CSIS to include "visitors clauses"
in warrants for security intelligence investigations.
27 November 1997 - The Federal Court of Appeal reversed
Heald J’s decision in Zundel. The Supreme Court of Canada
later denied leave to appeal.
26 March 1998 - The Senate established a Special Committee
on Security and Intelligence which was to report in the fall of 1998.
9 July 1998 - The Ontario Court of Appeal, by a 2-1
majority, dismissed the appeal in the Canadian Civil Liberties Association
case. The Supreme Court of Canada later denied leave to appeal.
January 1999 - The Senate Special Committee on Security
and Intelligence tabled its report.
November 1999 - Media accounts contained reports of
theft and mishandling of confidential CSIS documents.
16 December 1999 - The Solicitor General made the Annual
Statement on National Security in the House of Commons and responded
to the Report of the Senate Special Committee on Security and Intelligence.
SELECTED
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* The
original version of this Current Issue Review was published in September
1984; the paper has regularly been updated since that time.
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