Presentation to the Senate Special Committee On The Anti-terrorism Act

Susan Pollak, Executive Director
Security Intelligence Review Committee

Ottawa, Ontario
April 18, 2005

Good afternoon. I would like to begin by extending greetings from the Chair of the Committee and the other Committee members who could not be here with us today. As SIRC's Executive Director, I will be speaking on their behalf. It is a great privilege to be here to address you. I sincerely hope that my comments will assist in your review of the Anti-terrorism Act.

I would like to discuss three matters. First, I will provide you with a very brief description of what SIRC does. Second, I will discuss SIRC's first review of a CSIS activity arising directly out of the Anti-terrorism Act, specifically, their role in the terrorist entity-listing process. Finally, I would like to raise some questions with respect to the Security of Information Act as amended by the Anti-terrorism Act regarding SIRC's role in the public interest defence when a person who is permanently bound to secrecy discloses classified information.

SIRC is an external review body independent of government. It was established to provide assurance to Parliament that CSIS is complying with the law in the performance of its duties. In doing so, the Committee ensures that CSIS does not undermine the fundamental rights and freedoms of Canadians while it carries out its mandate to guard against threats to national security.

SIRC is the only independent external body with the legal mandate and expertise to review CSIS activities. By “independent” and “external” I mean that SIRC is at arm's-length from the Government and does not report to any Minister but, rather, directly to Parliament.

SIRC's current membership includes the Chair, the Honourable Madame Paule Gauthier; the Honourable Gary Filmon; the Honourable Roy Romanow; the Honourable Baljit Chadha; and the Honourable Raymond Speaker.

SIRC has two principal responsibilities; to conduct reviews of CSIS activities and to investigate complaints. We review CSIS activities against four instruments that together form the legislative and policy framework of the service. These are the CSIS Act, ministerial direction, national requirements for security intelligence and CSIS operational policies.

SIRC has the absolute authority to examine all of the Service's activities, no matter how sensitive and how highly classified that information may be, with the exception of Cabinet confidences. I want to stress that the Committee examines the Service's performance on a retrospective basis only, that is to say, we examine the past activities of the Service. Our work is not intended to provide oversight of current CSIS activities.

SIRC also conducts investigations in relation to complaints about CSIS activities, complaints about the denial or revocation of security clearances, Ministers' reports in respect of the Citizenship Act and, finally, complaints made under the Canadian Human Rights Act that are referred to SIRC for national security reasons. The Committee issues reports and makes recommendations to the Director and to the Minister and also reports its findings to the complainant.

It is easy to obtain more information about SIRC by visiting our website. I have brought along copies of our most recent annual report to Parliament as well as a small publication called “Reflections” that recounts SIRC's 20-year history and describes some of the challenges we face today.

With regard to the role of CSIS in the terrorist entity listing process, when SIRC first appeared before the special Senate committee studying Bill C-36 in October of 2001, we did not anticipate any significant qualitative changes to our work or to that of CSIS as a result of the bill's impending passage. After all, CSIS did not receive any new powers and its mandate under the CSIS Act, as well as SIRC's, was unchanged.

SIRC assumed that the Anti-terrorism Act would not greatly affect the service's operations because only a single section of the CSIS Act was amended by the Anti-terrorism Act. That change was to the definition of “threats to the security of Canada,” which was amended to include the words “religious or ideological” in section 2 so that the section now reads:

(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and

That is section 89 of the Anti-terrorism Act.

SIRC did, however, at that time predict that the bill's passage would result in an increase in the number of complaints we received based on our presumption that many groups or individuals placed on the terrorist entity list established under the Criminal Code would file complaints with SIRC under section 41 of the CSIS Act.

Three years later, that has not proven to be the case. Almost all of the listed entities are foreign based and are, therefore, unlikely to complain to SIRC. In fact, to date we have not received any complaints in relation to the entity- listing process. This situation could change, however, if Canadian citizens or groups with a strong Canadian presence were to be listed in the future.

I would now like to discuss some of the Committee's concerns arising from our first review of the Service's participation in the terrorist entity-listing process, which I will at times refer to as the TEL process.

SIRC identified three issues. The first relates to the authorities under which CSIS collects information for the purposes of the listing process and the extent of their collection activity, and the other two relate to SIRC's ability to review the listing process.

The first area is CSIS's authority for engaging in the listing process. The TEL process is mandated under section 83.05 of the Criminal Code, as amended by the Anti-terrorism Act. CSIS plays a role in the TEL process by creating the security intelligence reports, or SIRs, considered by the Minister of Public Safety and Emergency Preparedness in making her recommendation to the Governor-in-Council concerning whether or not an entity should be listed.

When we examined the service's role in the TEL process, SIRC asked itself: (1) What is the Service's authority to participate in the listing process; (2) What is the meaning of threats to the security of Canada as defined in section 2 of the CSIS Act; and (3) Is the definition of threats to the security of Canada in the CSIS Act consistent with the definition of terrorist activity in the Criminal Code?

These questions are not hypothetical. There are several entities on the Criminal Code list, which currently includes 35 groups, as you know, that do not appear to fall within the definition of threats to the security of Canada under the CSIS Act.

Let me give you two examples.

The Japanese cult, Aum Shinrikyo, is a listed entity. While I cannot discuss the details of CSIS investigations, I can say that this organization has not committed any terrorist acts on Canadian soil and does not have any obvious presence or support apparatus in Canada. The question for SIRC is whether such an organization falls within the definition of threats to the security of Canada in the CSIS Act.

Similarly, the listed Colombian group known as Las Autodefensas Unidas de Colombia, or AUC, clearly commits terrorist activity in Colombia. No one disputes this fact. Does the AUC, which primarily targets Colombian peasants, represent a threat to the security of Canada?

Section 2 of the CSIS Act is very specific, owing to the importance that Parliament placed on clear legislative boundaries to the service's collection activities. The CSIS Act defines threats to the security of Canada as activities against Canada or detrimental to the interests of Canada in section 2(a); activities within or relating to Canada, sections 2(b) and 2(c); or activities directed toward undermining the established system of government in Canada, section 2(d). Canada and Canadian interests are the common denominators in all four definitions of threats to the security of Canada.

In contrast, section 83.01 of the Criminal Code defines terrorist activity as an act or omission corresponding to the listed offences that is committed in or outside Canada. While the CSIS Act specifies a particular relationship to Canada, the Criminal Code definition for terrorist activity may or may not relate to Canada because it includes activities that may take place outside Canada and that need not specifically relate to Canada.

The bottom line is that it is not necessary for the terrorist activity to have a clear relationship to Canada or to Canadian interests in order for it to meet the definition of terrorist activity in the Criminal Code.

As the Department of Justice has noted, the Anti-terrorism Act was designed to harmonize Canadian legislation with that of our international partners, but as a result of our review, SIRC noted that this international dimension of the listing process is not accounted for in the CSIS Act, which was designed to limit the Service's collection activity to national concerns.

To put it another way, what this means from SIRC's perspective is that the listing process may require CSIS to collect, retain and analyze information that does not fall within the definition of threats to the security of Canada in the CSIS Act.

When we were talking about this at the office, I found that the easiest way to consider it was to think of two concentric circles. The inner, smaller circle represents the Service's activity as authorized under section 12, which is limited to threats to the security of Canada, and the outer, somewhat larger circle represents the Service's collection, analysis, retention and advice concerning information and intelligence on terrorist activity for the entity-listing process that is mandated under the Criminal Code.

Much of the information in the two circles coincides and falls within the Service's mandate under the CSIS Act, but some does not. What do we do when the circles do not fully coincide? Is that an indication of inconsistency between the two definitions? Is there a reason for concern? As a result of SIRC's review, the Committee concluded that there is an area where the two circles do not coincide.

SIRC recognizes that the Service has the statutory authority to collect information and intelligence for the entity-listing process pursuant to Ministerial direction to the service under section 6(2) of the CSIS Act. I should note, however, that for the first year of the entity-listing process, CSIS performed its new duties without formal Ministerial direction and, of course, Ministerial direction to the Service cannot expand its mandate but only provide authority to CSIS to act within the limitations that are already established by the CSIS Act itself.

Before continuing, I do want to be clear. SIRC does not fault CSIS for this situation because this is not an issue of CSIS's making. These are matters of legislative authority over which the Service does not have any control.

Overall, in our review of the Service's role in the listing process, we found that their collection of information was undertaken in accordance with Ministerial direction once this direction had been provided and according to relevant operational policies. Nevertheless, we concluded that the process required the Service to collect some information that does not fall under the authorities set out in the CSIS Act in regard to threats to the security of Canada.

As a review body, the Committee believes that any extension of CSIS's collection activity warrants particular attention. After all, Parliament intended that the Service's collection activity would be precisely defined, owing to the extraordinary powers that are exercised by the service. The Committee would simply like to note that this narrow extension of CSIS's collection activity and the lack of clear authority pertaining to that activity is of some concern. They would like to see the issue addressed as part of your review.

This brings me to the second subject related to the listing process, which is SIRC's own ability to review CSIS's role. The special Senate committee that originally examined Bill C-36 expressed concerns that the TEL process lacked adequate provisions for independent review. Senators were especially concerned at CSIS's involvement in the two-year review of the list, noting that, in effect, the list would be reviewed by the same people who had created it.

As a result, Senators recommended that an officer of Parliament position be created to review the listing process or, alternatively, that SIRC be responsible for its regular review. At that time, Minister McLellan, who was then Minister of Justice and Attorney General of Canada, argued that existing review mechanisms were sufficient. She stated before the special Senate committee that:

...we have ongoing oversight mechanisms that have proved effective, be that SIRC, be that the courts. Therefore, I would be disinclined to think about the creation of a new oversight mechanism that is separate and apart from those that exist...

We know that Senators raised this concern again with Minister McLellan during her recent appearance before this special committee. We also noted that Minister McLellan again cited SIRC as one of the most important safeguards and accountability mechanisms with respect to provisions in the Anti-terrorism Act. Since Minister McLellan specifically cited SIRC's ability to review the list as an important safeguard, it is important to signal that although SIRC can perform a fairly comprehensive review of the service's role in the listing process, we are unable to perform a complete review.

Succinctly put, SIRC cannot see the actual security intelligence reports, or SIRs, the reports I mentioned earlier, upon which the Governor-in-Council decisions are based, owing to Cabinet confidentiality.

We accept that subsection 39(3) of the CSIS Act prevents SIRC from gaining access to a Cabinet confidence, and we also recognize other checks and balances are built into the listing process. Nonetheless, the Committee considers it important that you be aware of this constraint on our conducting a comprehensive review of the role of CSIS in the listing process.

I should note also that in the past, on the few occasions when SIRC has encountered an issue of Cabinet confidence, we have reached an agreement with past Solicitors General to satisfy those concerns. I wish to note the chair has raised this concern directly with Minister McLellan, and we are awaiting a response from her.

An additional but lesser concern is that another agency, such as the RCMP, could prepare a SIR. In paragraph 83.05(6)(a) of the Criminal Code on judicial review of the listing process, the code refers to “any security or criminal intelligence reports considered in listing the applicant.” However, it does not specify which Canadian department or agency might prepare those reports. The inclusion of the word “criminal” here suggests that the RCMP could play a role in this process, and this has been confirmed to us by CSIS.

In the event that the RCMP were to prepare a SIR for consideration in the Governor-in-Council listing process, SIRC would have no jurisdiction whatsoever to review it, since our mandate is restricted, as you know, to CSIS.

I move now to my final subject, which is SIRC and the Security of Information Act.

The Official Secrets Act was repealed by the Anti-terrorism Act and replaced by the Security of Information Act. That act has created a new responsibility for SIRC. Specifically, section 15 provides for a public interest defence where an individual permanently bound to secrecy discloses special operational information as defined by the act.

Such a defence would only be available when the individual had first brought the information to the Deputy head or the Deputy Attorney General of Canada and, in the absence of a response from those individuals, to SIRC.

We have several questions in relation to these provisions, specifically, what was Parliament's intention when it created a role for SIRC? Although this provision allows for SIRC to receive special operational information, SIRC's role upon receipt of said information is left undefined. If Parliament intended that the Committee would conduct an investigation relating to the special operational information, what would the Committee's statutory powers be? Would the Committee make findings and recommendations?

The Committee's responsibility to report on such an investigation, and to whom, also needs to be specified. These issues remain unclear to SIRC, and no clear link has been made to our existing mandate under the CSIS Act.

Considering the potentially serious repercussions for government employees were they to disclose such information, the Committee would welcome more clarity in this matter.

In conclusion, I would like to thank the members of the Senate for giving SIRC an opportunity to comment on some of the issues that we have seen relating to the Anti-terrorism Act. I hope that my remarks will assist you in your review and look forward to answering any questions that you may have.