Social Science Research Network
Craig Forcese University of Ottawa – Common Law Section
Kent Roach University of Toronto – Faculty of Law
Leah Sherriff University of Toronto
February 27, 2015
Canada’s system of national security “oversight” is imperfect. Its system of national security “review” is frayed, perhaps to the breaking point. The government’s anti-terrorism law, bill C-51, will accelerate this pattern. Without a serious course correction, we risk the prospect of avertable security service scandals.
There is often a misunderstanding about the distinction between ”oversight” and ”review.”
In Canadian practice, oversight is usually an executive branch function. This system has not always worked the Air India Commission suggested (and the government rejected) new centralized oversight systems for reconciling competing national security interests.
C-51 does not introduce new reforms in this area. The government instead points to judicial warrants authorizing the new CSIS powers a form of oversight. But this is, at best, a partial form of oversight. CSIS will not always require warrants. Judges will issue warrants in secret proceeding in which only the government side is represented. Nor will they always know what is then done in their name. There is no formal ”feedback” loop between CSIS and the judge concerning the execution of the warrant, a key concern where (as with CSIS warrants) the conduct is covert and the warrant never disclosed.