Bill C-59 makes important changes to the accountability structures that provide oversight and review for Canada’s national security agencies and related departments. In particular, we want to highlight the creation of NSIRA and the Intelligence Commissioner.
C-59 creates a new, integrated review body in the National Security and Intelligence Agency Review Act (NSIRA Act), whose mandate it will be to review the activities of our two spy agencies, the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment (CSE), and other national-security involved agencies and departments like the RCMP and CBSA.
In carrying out its mandate, NSIRA will:
- Investigate complaints with respect to any activity carried out by CSIS, CSE and any complaint referred to it under the RCMP’s native complaints mechanisms;
- Investigate complaints related to denial of security clearance across government;
- Review any national security activities it chooses, and some that are specifically referred to it, and will assess these for their lawfulness, compliance with ministerial directives, reasonableness and necessity, issuing findings accordingly;
- Report on its review and investigation findings to the Minister concerned and, in the case of complaints, to the person who complained. However, NSIRA does not have the power to issue remedies for complaints or to order compliance with its findings on review;
- Compel any government department to carry out an internal study for the purpose of ensuring any such department’s national security or intelligence-related activities are lawful, reasonable and necessary—and report on those findings to the appropriate Minister;
- Issue annual reports on the activities of CSIS and CSE, to be issued to the appropriate Ministers and distributed to the Attorney General and the Intelligence Commissioner;
- Issue an annual report with respect to its own activities over the past year, including all of its findings and recommendations, and a report on the disclosure of information as it occurs under the Security of Canada Information Disclosure Act (SCIDA), which are presented to the Prime Minister and Minister of Public Safety and Emergency Preparedness, respectively and which must be tabled in the House of Commons within 15 sitting days.
Through this work, NSIRA replaces a number of bodies or functions: the Security Intelligence Review Committee (SIRC), the Office of the Communications Security Establishment Commissioner (OCSEC) and the national security review elements of the RCMP’s Civilian Review and Complaints Commission (CRCC).
The creation of NSIRA is a very positive move; increasingly, agencies and departments conducting activities related to national security are working together, so the body that reviews them needs to be able to get a “big picture” view of their joint operations.
Whether or not this new review body can fulfill its promise will depend on whether appointees are credible, and whether it is given the resources it needs, including a healthy budget and enough staff. The combined staff of CSIS and CSE alone number in the thousands, so keeping track of their activities and reporting them to the government and the public is a significant undertaking. Unfortunately, there are also some gaps in this oversight framework. For example, it remains unclear the extent to which NSIRA will review the activities of the Canada Border Services Agency, a body in desperate need of better accountability mechanisms for all of its activities—and not simply those which relate to national security.