Who’s Watching the Spies?

Much of the debate following the shootings in Ottawa and Saint-Jean-sur-le-Richelieu has turned on whether or not increased surveillance by Canadian law enforcement and intelligence agencies could have prevented the actions of Michael Zehaf-Bibeau and Martin Couture-Rouleau. Then comes the follow-up: Must we adopt stronger measures and would they put our civil liberties at risk?

To be clear, this has nothing to do with the recent tabling of Bill C-44, drafted months ago. For reasons well explained by Craig Forcese, these measures aim primarily to assist CSIS in obtaining warrants for overseas investigations and to help protect the identity of CSIS informants.

Nor is this a sermon on the characterization of Zehaf-Bibeau and Couture-Rouleau as terrorists versus criminals, lone wolves, or simply mentally-disturbed individuals. Both are plausibly all of the above – lost individuals, acting with little support from any network, and who tended to view armed struggle against the West in glorified terms.

The question is, what comes next? And this is where, hopefully, lawmakers will avail themselves of a healthy cooling-down period, and resist the temptation to legislate in matters of surveillance without first giving proper consideration to the necessary checks and balance that guard Canadians against abusive intrusions by law enforcement.

Currently, that job falls to the Security Intelligence Review Committee (SIRC), which oversees Canada’s spy agency CSIS. But SIRC’s reputation has been badly bruised following the sudden departures of two of its past chairs, Chuck Strahl and Arthur Porter. And there are lingering questions about its ability to forcefully bring CSIS to account on its activities, all of which is compounded by the fact that, for intents and purposes, heading the committee is considered a part-time job.

According to Kent Roach , recently interviewed with Craig Forcese prior to the tabling of Bill C-44, the oversight of both CSIS and the RCMP the “problems encountered by the Security Intelligence Review Committee that reviews CSIS are notorious.” Two former Supreme Court justices have also come out forcefully in support of oversight before introducing new legislation.

To SIRC’s credit, it has flagged some of the concerns it has about CSIS’ methods, going so far as to point out incidents when the agency misled it. In theory SIRC can audit any CSIS activity, in addition to investigating complaints from the public. But an oversight body, to be truly effective, must have the proper tools, resources and funding to carry out investigations – independently from political interference – into if and how often our intelligence services break laws that are in place to protect the privacy of Canadians.

We already know all too well that the struggle against terrorism – unlike conventional wars – is open-ended and can drag on for years and decades. We can presume that whatever measures are imposed in the wake of events like the recent shootings will stay on the books indefinitely. Similarly we can presume that, acting in the shadows unchecked, spy agencies will be inexorably drawn to abuse whatever powers are granted to them for years on end. Our only safeguard against that is intrusive scrutiny from a well-funded and fully independent watchdog. That is no small matter and it is must be addressed seriously before we go any further in unleashing any new anti-terrorism legislation.