Canada's national security oversight is among the weakest in the world: former human rights advocate

Lack of decisive action following CSIS ruling means nothing will change.

November 20, 2016

The government won't say what kind of technologies it allows police and CSIS to use for covert surveillance in Canada. (Reuters)

There doesn't seem to be much that Canada's intelligence and spy agencies can't do these days—and that includes breaking the law.

While much of the world remains anxious about the future of a Donald Trump presidency, Canadians should refocus their attention back home, and they should start with the country's bloated national security state. 

Experience shows that most of a country's establishment systems have likely transcended partisan lines and will remain immune to changes in political personality. National security seems to be one of these categories and its pervasive entrenchment within post-9/11 democracies has been demonstrated both in and outside of American borders. 

The Canadian security apparatus is a good example of how partisan changes usually have minimal impact on the larger system. There is no Canadian Edward Snowden to shed light on the extensive surveillance and policing machinations of CSIS or the Communication Security Establishment (CSE).

So the Canadian people — and oftentimes their elected officials — continue to be kept in the dark.

• CSIS locks horns with diplomats over anti-terror info sharing
• CSIS, Bill C-51 and Canada's growing metadata collection mess

CSIS director Michel Coulombe waits to appear at the Senate national security committee to discuss Bill C-51 in 2015. (Adrian Wyld/Canadian Press)

Hidden database

A federal court made national news last week by rebuking CSIS for essentially hiding a giant database full of private information belonging to law-abiding Canadians who pose no threat to public safety.

Its watchdog group, the Security Intelligence Review Committee (SIRC), had previously asked CSIS to disclose the existence and full capabilities of this database to the courts, but the spy agency refused and kept things secret for a whole decade.

The revelation has been an embarrassment for Public Safety Minister Ralph Goodale, who's been conducting a national consultation on how to reform Canada's security regimes. 

When asked why CSIS kept the database a secret from the courts, agency director Michel Coulombe simply said that he had no good explanation.

It's a good window into the state of Canada's national security state.

There's nothing yet to indicate that anyone at CSIS will be removed from his or her position and the national debate on security doesn't seem to include anything about why the CSIS watchdogs, which includes the SIRC, didn't take it upon themselves to disclose the database's existence.

Rather, SIRC head Pierre Blais came out last week to defend Coulombe for acting on good faith

• CSIS broke law by keeping sensitive metadata, Federal Court rules
• 'Shady, secretive system': Public Safety green-lit RCMP, CSIS spying devices, documents reveal

Minister of Public Safety and Emergency Preparedness Ralph Goodale (Michelle Siu/Canadian Press)

Privacy, personal liberty

Lost in all this is where the principle of privacy (and thus personal liberty and freedom), a crucial constitutional matter, should fit into the current debate over CSIS metadata collection and retention.

The court ruling noted that had CSIS mentioned that it would be storing the stuff they collected in bulk for a whole decade, no judge would've been able to issue them a warrant. And so CSIS kept quiet about it, thus making up their own rules as they went along.

This scandal deals with the strangely dislocated assortment of weak oversight groups and figures who're supposed to report specifically on CSIS activities. Yet it's actually the CSE that spies on foreign entities and collects "signal intelligence (SIGINT)," information "derived from electronic signals and systems used by foreign targets, such as communications systems, radars, and weapons systems," according to the NSA.

It's the CSE that vacuums up the most data these days, especially since CSIS has had to stop its bulk collection procedures for the time being.

There's precisely one person, the CSE Commissioner Jean-Pierre Plouffe, who's supposed to overlook the entire slew of intelligence-related activities that are carried out by the agency on a regular basis.

Though he's likely in need of a lot more help to carry out a useful and meaningful oversight mandate, he has still revealed that the CSE has been gobbling up tons of domestic third-party data along with the foreign information that they're supposed to be intercepting. 

• CSIS metadata: Ralph Goodale 'pursuing criticism' with spy agency management
• What you need to know about the CSIS metadata ruling

Weakest national security oversight

It was revealed early this year that the CSE had to pause its sharing of metadata to Canada's international partners because it was inadvertently leaking private information of Canadian citizens to its allies.

The agency then said it had no idea how long the leak lasted. Suffice it to say that, as the former Ontario Privacy Commissioner Ann Cavoukian noted at that time, the actual collection of such private domestic information should never have occurred in the first place. 

The frustrating thing is that none of these discoveries, or the limited recommendations by watchdog groups, has ever really meant much on the practical level. Canadian national security oversight has never actually led to concrete consequences that would have reprimanded or punished CSIS or CSE wrongdoing and negligence.

Even as it was revealed that CSIS essentially lied to the courts to obtain the sorts of warrants that it needed to collect data in massive bulk, there's been no real indication of what such an obvious transgression of the law ought to bring about by way of punishment.

Minister Goodale has promised swift action, but until those words actually manifest themselves into serious institutional change, then Canada will still remain the country with perhaps the weakest national security oversight in the Western world.