Parliamentary Research Branch

MR-61E

15 August 1990

TABLE OF CONTENTS

INTRODUCTION

DENIAL OF SECURITY CLEARANCES

   A.  Initiation and Investigation of Complaints

   B.  Hearings

   C.  Reporting

COMPLAINTS CONCERNING CSIS ACTIVITIES

   A.  Initiation and Investigation of Complaints

   B.  Hearings

   C.  Reporting

Under the Canadian Security Intelligence Service (CSIS) Act, the Security Intelligence Review Committee (SIRC) has a dual mandate – oversight and responding to complaints. In carrying out the latter function, SIRC is responsible for investigating and hearing complaints in two broad categories: complaints under s. 42 arising out of the denial of security clearances and complaints about CSIS conduct made pursuant to s. 41 of the CSIS Act. This paper describes briefly the procedures followed by SIRC for complaints in each category.

Complaints to SIRC about the denial of a security clearance can be made pursuant to s. 42 of the CSIS Act, sections 39 and 81 of the Immigration Act, and (for citizenship applications) s. 19 of the Citizenship Act. Section 42 complaints are by far the most numerous of the three, with 11 being made in 1988-1989, during which period there were no immigration or citizenship complaints. With this in mind, the complaint procedures followed when a s. 42 complaint is made will be reviewed.

Security clearances are granted by government institutions at three different levels: Level I, Level II and Level III. These levels were formerly known as Confidential, Secret and Top Secret, respectively. Security clearances are a condition of employment for many positions in the Public Service and are conducted with respect to employees whose duties require access to information classified in the national interest. A security clearance involves an investigation into the background of an individual to determine his or her reliability. An investigation includes a verification of all personal information, educational and professional qualifications, previous employment data, including assessments of performance and character, and a name check of criminal records. An investigation will also involve a credit and fingerprint check, a check through Canadian Security Intelligence Services information, a background field investigation (mandatory for Level II and III), and a personal interview of the subject, if necessary, to clarify any discrepancies or doubts.

Federal departments forward applications for clearance to CSIS investigation. Based on the information provided by CSIS to the department, a decision is made by the deputy head on whether or not to approve an individual’s application for security clearance. The individual affected is then notified and informed that the decision can be accepted or a formal complaint can be lodged with the Security Intelligence Review Committee (SIRC). The Department of National Defence and the RCMP carry out their own security assessments; complaints with regard to these may also be lodged with SIRC.

If an individual who is applying for employment in the Public Service is denied a security clearance, or is given a lower level of clearance, the effect may be to deny the position to the applicant, or to hinder his or her career advancement. A security clearance can also be very important to businesses that engage in contracts for goods or services with the government. If the contract requires the employees to be security cleared, denial of the clearances can mean a denial of the contract.

Complaints arising from security clearance matters can be made to the Committee in the following circumstances: when a person is refused federal employment solely because a security clearance has been denied; when a federal employee is dismissed, demoted, transferred or denied a promotion or transfer because a security clearance has been denied; or when an individual is refused a contract to supply goods and services to the government because a security clearance has been denied. The CSIS Act sets out the elements that must be present before a complaint can be brought forward; critics have argued that these criteria are too strict. As the lack of a security clearance can often mean the loss of employment opportunities, there have been suggestions that s. 42 should be broadened to allow any person who has been denied a security clearance the right to complain to the Review Committee. It should be noted that s. 44 of the CSIS Act also allows the Committee to receive and investigate complaints that are submitted by a person authorized by the complainant to act on his or her behalf.

The SIRC Chairman assigns a member of the Committee to make a preliminary review of the complaint to determine if SIRC has jurisdiction to investigate it. During this preliminary review, the Committee member is required to consider written representations from the complainant and the deputy head concerned, but is not required to hold an oral hearing. If the Committee member determines that SIRC does not have the requisite jurisdiction to enable the Committee to undertake an investigation, the complainant, the Committee and the Executive Secretary of SIRC are notified. If the Committee member determines that SIRC does have jurisdiction to investigate the complaint, the Chairman then assigns one or more members to perform such an investigation.

In order for an investigation to begin, notice must be given as required under s. 47 of the CSIS Act. The Committee is required to notify the Director of CSIS and, where applicable, the deputy head concerned of its intention to undertake an investigation and the substance of the complaint. The Committee staff then embarks on a fact-finding mission to obtain from CSIS and the deputy head of the government institution information that will enable the complainant to be as fully informed as possible of the circumstances that led to the denial of his or her security clearance.

The Committee then prepares a statement summarizing this information, which is sent to the complainant, the deputy head concerned and the Director of CSIS. Another statement sent at the same time advises the parties involved of their opportunity to make representations under ss. 48(2) of the CSIS Act, of the time limits within which those representations must be made and of the procedures for the making of representations as set out in Rules 45 through 51 of the Rules of Procedure of SIRC.

Subsection 48(2) of the CSIS Act permits the complainant, the deputy head and the Director of CSIS to make representation before the Committee, to present evidence and to be heard in person or as represented by counsel. According to the Rules of Procedure of SIRC, the Committee must first inform the complainant of the requirements of s. 48 of the Act, of his or her right to have an oral hearing or to make a written representation to the Committee. Oral hearings allow the complainant, the government institution and CSIS to present evidence and argument in a formal setting.

During an oral hearing, a party may be represented by counsel, call and examine witnesses and make representations. It is within the discretion of the Committee to exclude from the hearing, upon request, one or more parties and their counsel during the presentation of evidence or the making of representations by another party.(1) It is also within the discretion of the Committee, after consultation with the Director of CSIS, to determine what, if any, of the evidence presented during such exclusion can be disclosed to the excluded party. This practice allows SIRC to keep the complainant as informed as possible without jeopardizing national security or the privacy of others. Witnesses called and examined at an oral hearing are entitled to be advised by counsel or an agent as to their rights, but the witness, counsel or agent is entitled to be present only when the witness is presenting evidence. It should also be noted that persons presenting evidence at oral hearings are afforded the protection of s. 51 of the CSIS Act, which states that evidence given in oral hearings and evidence of the existence of the proceedings may not be used against that person in a court or in any other proceedings, except in a prosecution for making false statements in extra-judicial proceedings (Criminal Code, s. 133).

Given Canada’s multicultural nature, SIRC has established the practice that any person involved in an oral hearing who is not fluent in either official language is provided, upon request, with an interpreter for the proceedings.

Upon completion of the oral hearing, the assigned Committee member(s) submit a draft report to all SIRC members containing the findings of the investigation, along with a summary of the representations made to them and any other material they considered in drafting the report. The report also contains any recommendations the Committee members consider appropriate. When SIRC Committee members as a whole have reviewed the draft report, they may make editorial or legal suggestions to the members assigned to investigate the complaint. SIRC members may also suggest further investigation that might be conducted, including a referral to the Canadian Human Rights Commission. After the assigned members have had a chance to consider the suggestions of their colleagues, they must decide which, if any, to accept and incorporate into the report.

Once the report has been accepted by the Committee, SIRC presents to the Solicitor General, the Director of CSIS, the deputy head concerned and the complainant a copy containing any recommendations that the Committee considers appropriate, along with those findings of the investigation it considers fit to report to the complainant.

Section 41 of the CSIS Act states that any person may place a complaint with respect to any act or thing done by the Service. This type of complaint serves a useful purpose for those who are adversely affected by the actions of CSIS. While this type of complaint is the one most often received by SIRC, with 44 being made in 1988-89, it should be noted that many complaints received are beyond the jurisdiction of the Committee.

An individual must first submit his or her complaint to the Director of CSIS, who makes a decision on the matter and notifies the complainant. If the complainant is satisfied with the decision, no further action is taken. If the individual is not satisfied with the decsion, however, or if the response to a complaint is unduly delayed, the complainant can pursue the matter by forwarding it to SIRC. It should be noted that SIRC may not investigate a complaint that can be channelled through another grievance procedure under the CSIS Act or the Public Service Staff Relations Act.

Upon receipt of the complaint, the SIRC Chairman assigns a member of the Committee to make a preliminary review to determine if SIRC has jurisdiction to investigate the complaint, pursuant to paragraphs 41(1)(a) and (b) and subsection 41(2) of the CSIS Act. During this preliminary review, the Committee member is required to consider written representations from the complainant and the deputy head concerned but is not required to hold an oral hearing. If the preliminary review indicates that SIRC does not have the necessary jurisdiction to enable the Committee to undertake an investigation or that any of the conditions set out in paragraphs 41(1)(a) and (b) and subsection 41(2) have not been met, the complainant, the Committee and the Executive Secretary of SIRC are notified of the decision. If, however, SIRC does have jurisdiction, the Chairman then assigns one or more members to perform an investigation.

As in s. 42 complaints, SIRC is required to give the notices provided for in s. 47 of the CSIS Act. The Review Committee staff then begins to collect information from CSIS to enable SIRC to inform the complainant as fully as possible of the circumstances giving rise to his or her complaint.

With the information obtained from the fact-finding process in hand, the Committee then sends a notice to the complainant, the deputy head concerned and the Director of CSIS advising the parties involved of their opportunity to make representations under ss. 48(2) of the CSIS Act, of the time limits within which those representations must be made and of the relevant procedures as set out in Rules 45 through 51 of the Rules of Procedure of the SIRC. It is at this point that the presiding member or members of SIRC decide whether they will hold a formal hearing where the complainant and CSIS will be allowed to present evidence and argument. If oral hearings do take place, the procedures followed are the same as those for s. 42 complaints.

Following the completion of the hearing process, the assigned SIRC member(s) prepare a draft report, which should contain the findings of the investigation, any recommendations, a summary of the representations made to the member(s), and any other relevant material. The report is reviewed by all SIRC members from a legal and editorial viewpoint and their suggestions are incorporated into the report at the discretion of the assigned member(s).

The report is then communicated to the Solicitor General and the Director of CSIS and an unclassified summary of the recommendations is provided to the complainant.

(1) On 23 February 1990, the Federal Court of Appeal in the case of Chiarelli v. Minister of Employment and Immigration ruled that this provision (s. 48(2) of the CSIS Act) was in violation of the Charter of Rights. Leave to appeal this decision to the Supreme Court of Canada has been sought.