Christian LeuprechtChristian Leuprecht and Hayley McNorton testified on Bill C-59 at the House of Commons Standing Committee on Public Safety and National Security on Dec. 7, 2017. We are pleased to provide their written recommendations.

By Christian Leuprecht and Hayley McNorton, Dec. 11, 2017

1. The National Security and Intelligence Review Agency (NSIRA) should have the ability to support the National Security and Intelligence Committee of Parliamentarians (NSICOP).

Bill C-59 does not describe if and how NSIRA will support NSICOP in reviewing issues related to national security and intelligence. Since members of NSICOP have limited experience in intelligence or security, it will need internal, and possibly external, expertise to fulfill its mandate. If Bill C-59 is passed, NSICOP will only be able to apply to NSIRA or Civilian Review and Complaints Commission (CRCC) of the RCMP.

This raises the question of how much support NSIRA will provide and of what kind. First, on the matter of what kind of support, NSIRA could offer expert analysis/input and training workshops to NSICOP’s secretariat. When providing expert analysis, NSIRA would be required to ensure that this information does not violate the provisions guiding NSICOP’s access to classified information and decide how NSIRA will physically share information with NSICOP.

Second, in terms of how much support, it would be problematic if NSICOP relied on NSIRA as its primary resource for expert analysis. NSIRA would have a maximum of seven members (and a minimum of four), and only the Chair and Vice-chair could be full-time. Furthermore, NSIRA will have a broader mandate than the CSE Commissioner (OCSEC) or the Security Intelligence Review Committee (SIRC), and, consequently, might not have time to assist NSICOP on a permanent basis. As a result, NSICOP would need to rely on its secretariat to give the best advice, options and analysis to fulfill its mandate, and apply to NSIRA only when it cannot answer a question with its in-house expertise.

2. The CRCC for the RCMP should retain its ability to review issues and investigate complaints related to national security.

In the current version of Bill C-59, CRCC will refer complaints and reviews that are related to national security to NSIRA. This clause contravenes Justice O’Connor’s recommendations set out in A New Review Mechanism of the RCMP’s National Security Activities (2006).

If NSIRA retains this responsibility, the RCMP will be reviewed by two separate accountability bodies. Justice O’Connor argued that having two separate bodies review the RCMP was sub-optimal because (1) one accountability body that reviews all of the RCMP’s law enforcement activities will be better positioned to develop the expertise and experience necessary to review the Force’s national security activities effectively; and (2) it is easier to bolster an existing agency than to establish a new one. Although Justice O’Connor posited the former in 2006, the sentiment still holds true as developing new expertise and recruiting individuals with experience in holding the RCMP accountable will be difficult, and committing new resources to review the RCMP will be frivolous when there is already an agency dedicated to reviewing the Force.

If NSIRA retains this responsibility, the RCMP will be reviewed by two separate accountability bodies.

Under Bill C-59, CRCC will refer complaints and reviews that are related to national security to NSIRA. As a result, CRCC will have undue influence over NSIRA’s reviews of the RCMP because CRCC will remain the principal point of contact for national security complaints, and possibly the origin of national security reviews, for the RCMP. Since Bill C-59 does not define what national security is, the CRCC will have discretion over what it means in practice and, consequently, what reviews and complaints it refers to NSIRA. CRCC will probably define national security on a case-by-case basis, with guidance from CRCC’s executive. Furthermore, if the CRCC refers a complaint to NSIRA, in the current version of Bill C-59, NSIRA is required to review it. There is no clause that affords NSIRA latitude to decline or reject to review an issue or complaint referred to it by CRCC. The CRCC will, consequently, have significant influence over what RCMP issues and complaints NSIRA will review.

3. NSIRA should have the ability to conduct joint investigations with provincial police complaint bodies.

NSIRA is authorized to examine the national security and intelligence activities of federal departments, but not the provincial or municipal policing services. To ensure that NSIRA can “follow the thread” and has full awareness of national security and intelligence activities, NSIRA should be allowed to conduct joint inquiries with provincial police complaint bodies, provided provincial jurisdiction is respected and a provincial body agree to cooperate on an ad hoc basis.

4. NSIRA should develop and establish standards for intelligence accountability.

To ensure consistency and quality, NSIRA should leverage the expertise of its staff to set standards for Canadian intelligence accountability. Standards should be flexible to changes in intelligence tradecraft and based on the type of review method that is commensurate with appropriate professional standards: for example, methods used in audits, but tailored to review.

5. NSIRA should take reasonable steps to cooperate with the NSICOP to avoid any unnecessary duplication of work in relation to the fulfilment of their respective mandates.

In practice, NSIRA and NSICOP can coordinate to establish separate priorities for review. Since NSIRA will consist of former members and staff of SIRC, it can build on their experience to assess efficacy and compliance of intelligence activities, which should include feedback and suggestions on how intelligence and security agencies (ISAs) can improve their practices and operations to meet the evolving needs and priorities of government. NSICOP will assemble a broad range of perspectives on intelligence and security issues. NSICOP should, therefore, use its diversity of expertise to assess the effectiveness of the legal, policy, administrative and financial framework governing Canadian ISAs. NSICOP could also combine its expertise in legal, policy and administrative issues with NSIRA’s subject matter expertise to flag flawed and outdated national security legislation and suggest improvements.

Christian Leuprecht is professor at the Royal Military College of Canada and Queen’s University, and Munk Senior Fellow at the Macdonald-Laurier Institute. Hayley McNorton is an independent scholar.