Bill C-51 has emerged as a showdown between those who are fearful and want more security in an insecure world and those who are fearful and want more freedom from the things the first group might have in mind to make us more secure.
While a version of the Bill will almost certainly pass (the Tories have a majority government with, arguably, a pretty clear mandate for exactly the policy approach they are adopting), its reverberations into the election campaign to come brings additional heat and intensity to the debate. While the opposition parties differ on whether this should happen before or after the aforementioned election, they are united in the desire for more oversight. It is hard to argue against more oversight, but also, as I suggest below, perhaps too easy simply to argue for it.
I suspect few – and perhaps remarkably few – of those who argue for more oversight have a clear sense of what it would involve, its possibilities, and perhaps most importantly, its limits.
First, it is important to distinguish between ”œoversight” and ”œreview”. As Kent Roach has clarified in his work for the Arar Commission and subsequently, “oversight” mechanisms can be seen as direct links in the chain of command or accountability: they both review and are accountable for the activities of the overseen body. By contrast, ”œreview” mechanisms are more appropriately seen as facilitating accountability: they ensure that after actions are taken, the organization under review is accountable, and the public receive an independent assessment of their activities.
The Security Intelligence Review Committee (SIRC), for example, has a mandate that encompasses both oversight and review over the activity of the Canadian Security Intelligence Service (CSIS) and compliance with various aspects of the CSIS Act (CSIS includes approximately 3200 staff and has an annual budget of approximately $540 million). Given this mandate, SIRC is a very modest operation. As its last Annual Report details, SIRC has a budget of under $3 million and is supported by an Executive Director and an authorized staff complement of 17, located in Ottawa. This includes a Director of Research, Senior Counsel, a Corporate Services manager and other professional and administrative staff. Given its size, arguably it achieves a great deal, not only in its regular statutory reporting on CSIS activities, but also its response to specific complaints and more systemic undertakings – such as its review of all of CSIS’ surveillance activities and a review of CSIS’ activities outside Canada in 2013-14. Still, the idea that simply giving the same organization with the same capacity and resources more to do risks diluting its ability to deliver on a broadening mandate. All this is to say not that SIRC should have not have a greater role, but rather than our focus needs to shift from simply debating laws about oversight to taking a hard look instead into the lived reality of what oversight means.
Beyond its limitations in terms of capacity, SIRC has also been dogged by allegations of partisanship. While it has independence in how it fulfills its statutory mandate within its resources, SIRC’s appointments are made by the federal Cabinet (as opposed to, say, the Privacy Commissioner or Auditor General, who are appointed by Parliament and usually enjoy opposition party support as well as majority party support). In June of 2012, Chuck Strahl was appointed to SIRC and became its Chair. Strahl was a former Conservative MP from 1993 to his retirement from politics in 2011, and served in Prime Minister’s Cabinet between 2006 and 2011 in a range of portfolios including Minister of Agriculture and Agri-Food, Minister of Indian Affairs and Northern Development and Minister of Transport, Infrastructure and Communities. In January 2014, Chuck Strahl resigned his position as chair of SIRC after it was revealed by the press that he is also registered as a lobbyist, including for the controversial Enbridge Northern Gateway Pipeline. A previous SIRC Chair, Arthur Porter, resigned in 2011 after being accused of fraud in his past business dealings and is still in a Panamanian jail on fraud charges. While there is no evidence Strahl or Porter acted in any other than impartial and appropriate ways as Chair of SIRC, his tenure and resignation demonstrates the risks inherent in the current appointment process for SIRC.
To be fair, of course, many appointments of former politicians to SIRC have been and continue to be excellent, including members of diverse political stripes like Bob Rae and Ron Atkey, and including those without political backgrounds, such as my colleague Ian Holloway, Dean of the Law School at the University of Calgary, whose appointment was just confirmed in January of this year. That said, there are absolutely no guarantees that appointments to SIRC will always be of this high calibre and oversight is never self-executing. Here again, my point is that we should devote as much attention to who conducts oversight as to the scope of their role.
By the same token, the most meaningful forms of oversight in the CSIS context may be in areas not included in the law – for example, the commitment by CSIS’ leadership to a culture of accountability and the rule of law, the oversight of an independent judiciary where specific rights or interests are at stake, and the role of related accountability bodies with jurisdiction over intelligence gathering such as the Commissioner for the Communications Security Establishment (CSE).
There used to be a further oversight role performed by the Inspector General of CSIS. In 2011, the Conservative government closed down the Inspector General office citing the rationales of cost saving and the elimination of duplication. The Office at the time of its closure in 2012 had a staff of eight and a budget of about $1 million (that is, roughly half the size of SIRC). The government designated SIRC to take over the Inspector General functions. Eva Plunkett, the last Inspector General, pointed out the implications of this shift: ”œSIRC is a public forum for people to complain. It’s also a forum to make the public aware of problems. The Inspector General’s office was, get in there and identify the problems and point them out to the minister and say, ‘You have to fix this before it becomes an issue for the public.’ There’s no minister that’s going to be able to know everything about everything. And I can guarantee you that no director (of CSIS) will point out the flaws.” It is telling that while the call for oversight of CSIS under Bill C51 have brought out crowds to public squares across the country this past weekend, the dismantling of the Inspector General of CSIS’ raised barely a murmur from the media or the public in 2012. Or, to slightly modify Mario Cuomo’s oft cited phrase, we fight for laws in poetry but administer them in prose.
To conclude, simply adding words to a page of a statute does not actually protect anyone’s rights or constrain any intelligence gathering activities. Oversight is not just a power or authority written in a statute but rather depends on budget, staffing, political and administrative culture, exercises of judgment and discretion, vision in leadership, the ability to act independently and fearlessly, the quality of staff and their training, and, of course, the cooperation of the body being overseen – in this case, CSIS (as it is virtually impossible to oversee a body that is determined to resist it). In the end, I hope greater attention to the reality of oversight may be among the most lasting benefits of the current debate.