Thursday Thinkpiece: Forcese on National Security Accountability in Canada

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Fundamentals of National Security Accountability in Canada

Author: Craig Forcese
Publisher: Irwin Law Inc.
Imprint: Irwin Law
Publication Date: May 3, 2023
ISBN: Print (Paperback): 9781552216859
292 pages; 6″ x 9″

Excerpt: Chapter 9, The Future of Democratic Regulation

In Chapter 1, I described three modern generations of democratic regulation of security services in Canada: the McDonald Commission period (1984–2001), the post-9/11 period (2001–2015), and the modernization period beginning during Ralph Goodale’s tenure as public safety minister (2015 forward). Over these three periods, security service powers have changed (and expanded). Over the same period, the legal obligations of these services also increased, and new institutions dedicated to democratic regulation appeared (especially the National Security and Intelligence Committee of Parliamentarians [NSICoP] and National Security and Intelligence Review Agency [NSIRA]). In this chapter, I summarize my key observations and offer brief thoughts on the future direction of democratic regulation of the security services.

I. SUMMARY OF OBSERVATIONS

In this book, I have argued that history frames the functions of both the security services and those who hold them to account. From this history, I have proposed three values that underpin Canada’s national security system and against which security service conduct should be assessed. Efficacy/efficiency is the most obvious value: does the security service meet its mandates with minimum waste? It is also, however, the least scrutinized consideration, not least because so much security service conduct is invisible to the public.

Legality is the best-known value in a liberal democracy and is an answer to exceptionalism and the peril that security services may act as an authoritarian enclave within a democratic government. Preserving legality presents challenges, however, because of the same secretive context in which security services often operate and because the law itself may be unwieldy, uncertain, and antiquated.

Necessity/proportionality is a buffer on excessive use of security service powers. This principle may be used both to assess the merit of laws that give security services their powers and to gauge conduct under those laws. Indeed, the principle has often been incorporated as a formal requirement in these laws, making necessity/proportionality a subset of legality.

Necessity limits those powers to what is reasonably required to respond to legitimate threats. It thus restrains which powers are assigned to the services and when they can be exercised. Likewise, proportionality means that even where security services need to use their powers, they do so only to the minimum degree needed to achieve their lawful mandates while attentive to the negative consequences of their activities.

I have also argued that with great power comes great responsibility — ​and in Canada, the security services are endowed with considerable powers and entitled to use extraordinary methods and practices in service of their mandates. The quid pro quo is a bespoke form of democratic regulation, designed to test security service conduct against the values of efficacy/efficiency, legality, and necessity/proportionality.

Democratic regulation is itself built on three values. The first of these (a prerequisite to the others) is bounded transparency, ensuring that even as conventional accountability bodies may be limited in their access to classified information, specialized proxy entities (especially review bodies) are within the secrecy tent and entitled to see classified information.

The second value is control: that arm’s-length entities are competent to exercise controlling oversight or judicial control over service activities, sometimes as a prerequisite to these activities. The principle of control should mean that the most intrusive operations are approved by more senior officials outside of the service. In Canada, this standard is generally honoured, subject to countervailing principles. Thus, Parliament enacted a system of executive oversight for CSIS and the CSE that entitles relatively close ministerial oversight of the most intrusive security service activities. Meanwhile, legality questions are pondered by Justice Canada lawyers at arm’s length from the security services that are obliged to meet the attorney general of Canada’s obligation to facilitate the rule of law.

The situation for police is somewhat different. Police possess “independence” in operational decision making, limiting ministerial oversight. This departure from the control principle is justified as a means of limiting politicized use of the coercive powers of police services. Prosecutors are also obliged to act in the public interest, a requirement stemming from the constitutional expectations on the office of the attorney general and making this minister different from the others. In practice, this prosecutorial separation from political influence is enhanced institutionally by the further, legislated separation of the Public Prosecution Service of Canada from direct day-to-day decision making by the attorney general of Canada.

Police and prosecutorial independence may be abused — and other means must be available to safeguard against these bodies becoming laws unto themselves. In part, Canada tolerates the distant oversight of police and prosecutors because of the role courts play. Both police and prosecutors are obliged to test their activities in front of these independent courts when police investigations culminate in prosecutions. This testing constitutes a form of judicial scrutiny. Further, the most intrusive investigative techniques of both police and CSIS must, constitutionally, be approved by a judge. This form of judicial control supplements ministerial oversight (which is, as noted, limited in the case of police), while new quasi-judicial control exercised by the intelligence commissioner now extends to several aspects of the CSE’s and CSIS’s mandates. In this manner, independent courts (or quasi-judicial entities like the intelligence commissioner) bolster executive oversight over the most intrusive security service investigative techniques.

Courts, however, only hear the cases brought to them. Only a narrow subset of security service activity requires a judicial warrant or authorization. An even narrower subset will ever be subjected to judicial scrutiny in cases brought by litigants to courts. Courts cannot reach out and initiate their own assessment of a service’s compliance with the law. Nor do they have the competence to address the efficacy principle. Deeper, more proactive, and far-ranging scrutiny depends, therefore, on other entities.

Scrutiny is, therefore, a third value of democratic regulation in Canada. Scrutiny means that independent entities exist to look over the shoulder of security services and review their conduct. Canada has many general and more specialized institutions dedicated to the scrutiny of executive government. Each of these confronts challenges when scrutinizing the security services. Patchwork subject matter jurisdiction is part of the problem. But even for bodies with a broad mandate — such as Parliament and its committees — the key impediment is limited access to classified information. Struggles over information may steer scrutiny efforts into protracted process debates and even litigation. The time and energy dedicated to this purpose consume the time and energy available for actual scrutiny of the security service.

It is exactly for these reasons that Canada adopted specialized national security review in 1984. With time, however, that initial system suffered from underinclusive jurisdiction and resourcing challenges. Meanwhile, Canada neglected a formal review role for parliamentarians — a notable oversight in a Westminster system in which Parliament is supposed to play the chief role in scrutinizing the executive. During 2017–19, Canada created a revised review system generally consistent with the principles of review articulated by external observers, such as commissions of inquiry. I have argued in this book that building on this institutional infrastructure requires a full embrace of a series of supplemental principles, especially review professionalism and attention to standards ensuring that review bodies serve the role expected of them.

II. THE NEXT GENERATION

I end this book by asking what Canada can expect of this system of democratic regulation in the future. No system is ever complete, and in institutional design, no destination is ever final. It should be expected that lessons will be learned (and some re-learned) and institutions and practices adjusted. There will, however, almost certainly be some baseline expectations. It seems unlikely, for example, that Canada will abandon the six values outlined in this book. In particular, efficacy will remain an acute concern, as will legality. These two values lie at the heart of the inevitable need to reconcile security services possessing intrusive powers with liberty in a liberal democracy. That need means that the solutions of bounded transparency, control, and scrutiny will remain intact.

Whether these values will produce the same institutional structure is less certain. National security review may continue to evolve, for instance. An effort to fold together NSICoP and NSIRA would be a false economy, encumbering review with the potential continuity challenges NSICoP faces as a body staffed by parliamentarians, diluting detailed legality assessments in a potentially more political committee structure, and leaving national security complaints investigations orphaned. (It is difficult to imagine that Canadian administrative law could ever support a system of potentially quasi-judicial complaints investigations led by political members.)

One might expect, however, evolution in the structure and roles of NSICoP and NSIRA. For instance, one might reasonably predict that NSICoP will gravitate to a parliamentary committee structure (albeit one that continues to have a statutory foundation) rather than its current “committee of parliamentarians” design. Parliament may come to exercise more direct control over appointments of members and of the chair, an evolution tracing that in the United Kingdom. One might also expect that either in law or in practice, NSICoP’s review will focus increasingly on cross-cutting efficacy issues while NSIRA dedicates its functions to propriety review. NSIRA itself may evolve from an entity led by a multi-member committee to a model with a single full-time inspector general, analogous to those in Australia or New Zealand (and consistent with the approach adopted in Canada for the privacy commissioner, for example). In this book, I have discussed the pros and cons of such an evolution.

In the final analysis, however, institutional design should be guided by the purposes of democratic regulation and the six specific values that I have argued are associated with the national security system. Likewise, institutional success should be gauged by the degree to which institutions advance those principles. Admittedly, progress toward this objective is a difficult thing to measure in practice, especially in the whack-a-mole chaos of day-to-day activities. Still, continual self-reflection on this goal and a regular testing of practices against values aid this cause. In the end, everything depends on these principles being embraced by those working in the security services, those participating in review of them, and those scrutinizing both the reviewed and the reviewers as parliamentarians or members of the public. After all, principles only matter where internalized. Canada generally does well in this area and was an early adopter of the “social compact” model in its national security sector. Tomorrow’s challenge will be learning from this long experience and continuing to foster a national security system suited to a liberal democracy.