The National Security and Intelligence Review Agency (NSIRA) and the Office of the Privacy Commissioner (OPC) recognize the benefits of coordinating their efforts to ensure efficient and effective review. As such, NSIRA and the Office of the Privacy Commissioner (OPC) have implemented a Memorandum of Understanding (MOU), setting out the parameters for future coordination between them.
NSIRA has the legal authority to coordinate its activities with those of the Privacy Commissioner under s.15.1 of the NSIRA Act, and to this end, may provide the Privacy Commissioner with information concerning its reviews. The Privacy Commissioner has the corresponding legal authority to coordinate his activities with those of NSIRA under s. 37(5) of the Privacy Act and may provide information to NSIRA pursuant to subsection 64(3) of the Privacy Act.
The MOU clearly defines the objectives and procedures for ongoing coordination, defines roles and responsibilities for joint reviews and investigations, and sets out the parameters for information management, reporting and administration. Implementing this MOU will enable NSIRA and the OPC to benefit from each other’s expertise and provide transparency on their coordination efforts.
The National Security and Intelligence Review Agency (NSIRA) has taken careful note of the decision of the Federal Court, issued on July 16, 2020, regarding the legality of certain Canadian Security Intelligence Service (CSIS) activities involving human sources of intelligence and CSIS’s failure to meet its duty of candour owed to the Court.
The Federal Court examined the impact of CSIS’s application of the legal doctrine of Crown immunity to human source activities in the context of CSIS warrant applications. Until early 2019, CSIS relied on the doctrine of Crown immunity to justify a range of actions taken during the collection of intelligence by CSIS employees and those acting at their direction – actions that would normally be considered unlawful.
SIRC REVIEWS OF CSIS HUMAN SOURCE ACTIVITIES
In its decision, the Court cited the role of the Security Intelligence Review Committee (SIRC) in raising awareness of the issues regarding CSIS’s reliance on Crown immunity. SIRC, created alongside CSIS in 1984, closely scrutinized the activities of CSIS until its replacement by NSIRA in July 2019. During that time, SIRC regularly examined CSIS’s use of human sources to collect intelligence. For example:
In the May 12, 2015, review of CSIS’s Relationship and Exchanges with the Department of Foreign Affairs, Trade and Development (1) SIRC drew attention to the legal constraints facing CSIS with regard to its human source operations when it noted that certain CSIS operations abroad may have been in contravention of the United Nations Al Qaeda Taliban Regulations and other similar laws. SIRC then directed CSIS to undertake a wide-ranging review of its own activities for compliance.
In the May 27, 2016, review of CSIS’s Investigation of Canadian Foreign Fighters, (2) SIRC noted legal risks associated with certain CSIS operations, and recommended that “CSIS seek legal clarification on whether CSIS employees and CSIS human sources are afforded protection under the Common Law rule of Crown Immunity in regards to the terrorism-related offences of the Criminal Code of Canada.”
Bill C-59, An Act respecting national security matters, was introduced on June 20, 2017, received Royal assent on June 21, 2019, and is now in force. Included in Bill C-59 were new provisions that permit CSIS to undertake human source activities with explicit legal protection. These provisions were not retroactive, however.
SIRC continued to examine CSIS’s human source activities following the introduction of Bill C-59. In its annual report for 2016-2017, SIRC raised the issue of CSIS’s ongoing conduct of human source operations that risked contravening Canadian law. The report noted that, pending the coming-into-force of Bill C-59, SIRC would monitor CSIS’s efforts to mitigate the legal risks of human source operations.
SIRC’S CERTIFICATION OF THE CSIS DIRECTOR’S 2017-2018 REPORT
In its certification of the Director of CSIS’s 2017-2018 report to the Minister of Public Safety and Emergency Preparedness, SIRC concluded that, in its opinion, CSIS had conducted human source activities that could not be justified by the doctrine of Crown immunity. As such, CSIS had undertaken human source activities “despite knowing that these activities did not comply with the CSIS Act and Ministerial Direction, which stipulates that ‘the rule of law must be observed’”. SIRC also stated its expectation that the Director report these activities to the Minister and the Attorney General of Canada under section 20 of the CSIS Act. The SIRC certificate, dated March 21, 2019, was delivered to the Minister and the Director of CSIS.
NSIRA will discuss the SIRC certificate in its first annual report, coming this fall. Given the recent Federal Court decision, NSIRA has also published a redacted version of the certificate, available online here.
For more information on NSIRA and its mandate, please see our website.
The Federal Court decision notes how CSIS did not provide SIRC with important information (3). In addition, CSIS delayed informing SIRC of a key legal opinion regarding Crown immunity for almost two years until January 2019, at which time SIRC was briefed on the situation unfolding before the Federal Court. In the certificate, SIRC also noted that certain CSIS briefing notes and reports on this topic submitted to the Minister of Public Safety and Emergency Preparedness had omitted key facts.
THE WAY FORWARD
Looking forward, the members of NSIRA believe strongly that CSIS’s utmost candour towards persons and institutions charged with reviewing and overseeing its activities is crucial to the effective functioning of Canada’s framework for national security accountability. This includes not only the Federal Court, but also review bodies such as NSIRA.
Independent review of CSIS is a statutory requirement for NSIRA. NSIRA reviews CSIS activities to ensure their compliance with the law and ministerial direction, as well as to ascertain the reasonableness and necessity of CSIS’s activities.
In its decision, the Federal Court recommends that a comprehensive external review be undertaken to fully identify the systemic, governance and cultural shortcomings and failures that resulted in CSIS engaging in illegal activity and the related breach of candour to the Court. The Minister of Public Safety and Emergency Preparedness and the Minister of Justice have since referred the matter to NSIRA for review under paragraph 8(1)(c) of the NSIRA Act.
In response, NSIRA will immediately launch a comprehensive review along the lines recommended by the Court. This review will focus primarily on CSIS and the Department of Justice. NSIRA may also review other related aspects of the matter as deemed appropriate, in accordance with our legal mandate. This review will be led jointly by two current members of NSIRA: the Honourable Marie Deschamps, C.C., a former justice of the Supreme Court of Canada, and Craig Forcese, a professor in the Faculty of Law at the University of Ottawa. NSIRA will expect full and unfettered access to all relevant information – as determined by NSIRA – needed to complete the review, as provided for in the NSIRA Act.
Ottawa Ontario, April 16, 2021 – On March 11th, 2021, unauthorized access was discovered on the National Security and Intelligence Review Agency’s (NSIRA) external network. This network houses unclassified and protected information only. It is not used for Secret or Top Secret information.
With the help of its federal partners, NSIRA was able to address this issue quickly and resume normal business operations.
NSIRA will be working with the Office of the Privacy Commissioner and Treasury Board of Canada Secretariat on any possible privacy issue. We will notify any affected individuals of updates directly or through our website. Ensuring the privacy of Canadians and the protection of NSIRA’s information are NSIRA’s top priority.
Contact
Tahera Mufti Manager, Communications and Strategic Engagement National Security and Intelligence Review Agency
The Prime Minister, Justin Trudeau, today announced the following appointment:
John Davies, currently Director General, National Security Policy Directorate, Public Safety Canada, becomes Executive Director, Secretariat of the National Security and Intelligence Review Agency, effective August 12, 2019.
On July 12, Canada’s framework for national security accountability underwent a major transformation with the creation of the National Security and Intelligence Review Agency (NSIRA) and the coming into force of the National Security and Intelligence Review Agency Act (NSIRA Act) alongside other parts of the recently passed Bill C-59.
The NSIRA Act closes gaps in the national security accountability framework first identified by Justice O’Connor in the 2006 Arar report, and subsequently by many others. Prior to the NSIRA, only specific agencies had independent expert review bodies, and these bodies could not collaborate or share classified information. The NSIRA, by contrast, is mandated to review all Government of Canada national security and intelligence activities in an integrated manner, without regard for the department or agency the activities fall under.
To fulfill its review mandate, the NSIRA is entitled to receive all information held by federal entities that the NSIRA deems relevant to its reviews, no matter how classified or sensitive. This includes information subject to a legal privilege. The sole exception is information classed as a Cabinet confidence.
The NSIRA will be led by up to seven members, eminent Canadians appointed by the Government in consultation with the opposition. The NSIRA will be supported by a secretariat of national security and legal experts.
The NSIRA will also hear public complaints regarding the activities of the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment (CSE), and – when closely related to national security – the Royal Canadian Mounted Police (RCMP), as well as complaints regarding the Government of Canada security clearance process.
The NSIRA replaces the Security Intelligence Review Committee (SIRC), which was limited to the review of CSIS. The NSIRA also replaces the former Office of the CSE Commissioner (OCSEC), which reviewed the activities of the CSE. In addition, the NSIRA assumes responsibility for reviewing the national security and intelligence activities of the RCMP from the Civilian Review and Complaints Commission (CRCC).
The NSIRA’s first annual public report will be tabled in Parliament in 2020.
Quotes
“For thirty five years, the Security Intelligence Review Committee helped protect the rights and freedoms of Canadians by ensuring the democratic accountability of CSIS. Its successor, the National Security and Intelligence Review Agency, looks forward to scrutinizing the full range of Government of Canada national security and intelligence activities to ensure that they are lawful, reasonable and necessary.”
The Honourable Pierre Blais, P.C. Member, National Security and Intelligence Review Agency
“Canada’s national security and intelligence agencies have been vested with extraordinary powers to help protect public safety and advance the national interest. Yet maintaining democratic accountability in the realm of national security, where secrecy is unavoidable, can be challenging. Independent institutions like the NSIRA play an important role in ensuring that parliamentarians and all Canadians remain appropriately informed of the important national security activities being carried out in their name.”
The Honourable L. Yves Fortier, P.C., C.C., O.Q., Q.C. Member, National Security and Intelligence Review Agency
“With its unfettered access to sensitive information, the NSIRA will act as a bridge between the Government and civil society, able to scrutinize emerging issues where there are public doubts or concerns. Through its reports and its day-to-day interactions with officials, the NSIRA can also bring public concerns to the attention of national security actors and policy-makers.”
The Honourable Dr. Ian Holloway, P.C., C.D., Q.C. Member, National Security and Intelligence Review Agency
“The NSIRA looks forward to working closely with the National Security and Intelligence Committee of Parliamentarians. Our complementary mandates will bolster the accountability of Canada’s national security and intelligence agencies.”
The Honourable Marie-Lucie Morin, P.C., C.M. Member, National Security and Intelligence Review Agency
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