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Submitted to the Minister of Public Safety And Emergency Preparedness pursuant to Subsection 33(2) of the Canadian Security Intelligence Service Act

Note: This is the text of the Inspector General of the Canadian Security Intelligence Service’s 2005 Certificate made public in 2006 pursuant to a request under Canada’s Access to Information Act. The 2005 Certificate was classified TOP SECRET when submitted to the Minister in November 2005. The symbol [––] represents classified information removed from the document.

Introduction

Subsection 33(2) of the Canadian Security Intelligence Service Act requires that I submit to you a Certificate stating the extent to which I am satisfied with the Director’s Annual Report to you. It also requires that I state whether, in my opinion, the Service has done anything in the course of its operational activities, in the time period covered by the Annual Report, which is not authorized by the Act, has contravened any Ministerial Directions, or has involved the unreasonable or unnecessary use of its powers. For ease of reference, the mandate and functions of the Inspector General are described in an appendix to this Certificate.

This is the second Certificate that I as Inspector General am submitting to you since my appointment in December 2003. The year has been one of some change in my office including a slight re-organization to ensure the best use of our limited resources. I am also happy to report that the office is now fully staffed. Over the past year I have continued the approach I established last year of bringing an independent and external perspective to the work of the Service to support your Ministerial responsibility for the Service, in essence being your “eyes and ears” into the Service.

I have sought and obtained briefings on a variety of matters from the senior executive at Headquarters as well as from HQ operational branches and have undertaken and completed visits to all the regional offices in order to have face-to-face exchanges with regional management and select investigators. Indeed, I concluded that this type of contact is essential to my support of you in your Ministerial responsibility for CSIS. In my Certificate last year I highlighted some of the contacts and consultations that I had with members of the larger intelligence review community in the international context. To continue to deepen my own knowledge base and to share best practices of review work, I followed this approach again this year by meeting with members of the Netherlands Supervisory Committee on the Intelligence and Security Services while they were visiting in Ottawa. As well, while in London completing an on-site inspection and compliance review of the security liaison office [––] I used the opportunity to meet with Lord Brown, who holds the position of UK Intelligence Services Commissioner and also with the Clerk of the UK Intelligence and Security Committee, there being no Committee as such because of the dissolution of Parliament at that time pending general elections. More recently, I visited [––] Washington for discussions with the security liaison officer there and also held talks with Inspectors General in the US intelligence community, including the IG in the office of the new Director of National Intelligence, Ambassador Negroponte.

In my first Certificate I indicated the importance I placed on maintaining a healthy working relationship with CSIS at all levels of contact, while at the same time always making clear and respecting our separate and distinct roles in the national security system. I wish to reiterate again this priority statement. In practical terms this means sharing any concerns with CSIS at the earliest possible stage so corrective actions can be taken, if required. I strongly believe that we must work together in finding solutions in search of continuous improvement of the effectiveness of CSIS operations while enhancing democratic accountability. I can state that this is what both parties have strived to do and succeeded in doing over this reporting period.

Nonetheless, I think it of particular value for you to be apprised of those areas where non-compliance has been identified, even though they may be few in number, and corrective action may already have been taken. My raison d’être is to support your Ministerial responsibility for CSIS.

Director’s annual report

In order to ensure that every statement in the Director’s section 33 (1) Report is fully supported and documented, my Office reviews all the pertinent information and intelligence collected and retained by the Service. At a minimum, this involves examining Branch accountability reports and the ‘facting’ intelligence reports on which they are based. This baseline is supplemented by exchanges of questions and answers in writing, by discussions, briefings and interviews. The extent of the Inspector General’s satisfaction as set out in the Certificate is based on this comprehensive process of validation.

Certification

In respect of all the reports and information that I, and my Office, have obtained and reviewed and of all the discussions held, and subject to the concerns raised below, I am as satisfied as I can be with the Director’s Annual Report to you on the Service’s operational activities for the period 2004-2005. In that respect, it is my opinion that the Service has not acted beyond the framework of its statutory authority, has not contravened any Ministerial Directions, and has not exercised its powers unreasonably or unnecessarily.

In addition to the validation of the Director’s report to you of 21 July 2005, this Certification is based on our reviews of CSIS operational activities and our monitoring of compliance with CSIS policy for the annual reporting period, which consisted of:

1. reviews of a sample of warrants and targets as well as of human source case management;
2. a review of the CSIS investigation of [––] a sample of targets, human sources and a warrant;
3. the compliance review of Quebec Region in Montreal and inspection visit of the district office in Quebec City;
4. the compliance review of the security liaison office [––] for the UK;
5. comprehensive CSIS briefings on:

a. the CSIS investigation of transnational criminal activity,
b. [––]
c. CSIS foreign investigative activities; and

6. a study on foreign liaison arrangements.

Issues

As indicated in the Certification above, the degree of my satisfaction with the section 33(1) Report is tempered by some concerns that arose in the course of the validation process and the Office’s review activity over the past year. The concerns relate to four areas:

1. non-compliance with CSIS operational policies;
2. accuracy of information;
3. “incidental” foreign intelligence collection abroad; and
4. foreign liaison and operational activities.

Non-compliance with operational policies

The dictionary definition of compliance is action that is in accordance with rules, while non-compliance is of course the opposite, action not in accordance with the rules, the rules here being operational policies. Some maintain that the whole matter of compliance is strictly speaking a management responsibility while only the verification of compliance lies with the review or oversight body. In this vein, the question of whether the rules are the right ones, the appropriate ones or whether some are more important than others is best left to management. Accordingly, I have only looked to the rules as they actually are without considering their appropriateness or their relative importance, and have ascertained whether or not there has been compliance.

There were three cases reported to me by the Director where CSIS employees had contravened operational policies. In addition the following two cases of non-compliance with operational policies were identified through our review work.

1.The Service did not comply in one instance with OPS-208 [––]
2.The Service did not comply in another instance with OPS-210 [––] There was no [––]

Evaluation Report produced [––]

I am satisfied that the Service has taken appropriate corrective action in each incident reported to me by the Director. With respect to the two cases cited above both of which involved reporting deadlines that were not met, the only corrective action that is required is a greater degree of diligence in respecting the reporting requirements as set out in operational policy. My Office will continue to monitor reporting requirements and associated timelines.

Accuracy of information

The Inspector General’s Certificate is to state the extent to which the Inspector General is satisfied with the Director’s section 33(1) report. I am concerned about a number of inaccurate points that my staff identified in the Director’s report. Some are concerning statistical data but others I would consider to be more substantive. I should add that on all these points, the Service has acknowledged the inaccuracies and is taking steps to issue corrections to you. The inaccurate points identified are:

1. The section 33(1) report refers to the Service having undertaken [––] joint operations; [––] were carried out in fact;
2. The report indicated that over 450 [––] reports (threat assessments) were produced but the Service could provide my Office a list of only 417
3. [––]
4. With respect to reports prepared by Research, Analysis and Production branch, we discovered that three reports had not been counted in compiling the figures for the Director’s report to you.

While none of these inaccuracies may appear to be very significant, their mere existence is worrying to me. This, coupled with the fact that the Director’s report last year also contained inaccuracies which my office identified, may be symptomatic of a broader issue of overall information management. [––] CSIS is an organization with a mandate to collect information. CSIS prides itself on having very good information management systems [––] Accurate reporting is at the heart of CSIS accountability to you and your Ministerial responsibility for the Service and it is my assessment that greater care and diligence must be taken with the information reported.

“Incidental” foreign intelligence collection abroad

In last year’s Certificate, I indicated that I believed there was a potential risk that foreign intelligence collected abroad (whilst undertaking the collection of security intelligence abroad) could infringe the statutory requirement to collect foreign intelligence only within Canada. I can report that I did not find any conclusive evidence this year that such infringements are taking place. However, I did identify [––] that illustrate both

1. the potential risks that foreign collection activities pose to contravening section 16(1) of the Act, and
2. the inability of a review mechanism to give the Minister iron-clad assurances that no contraventions have taken place.
It is for these reasons that I am bringing [––] to your attention.

[––]

I have little doubt, if any, that foreign intelligence received by CSIS [––] is of significance and value, sometimes great value, to the Government. My concern is that the CSIS Act is quite categorical in distinguishing between security intelligence and foreign intelligence while the range of threats to be addressed by security agencies is not. In addition, review bodies are hampered in seeking to validate that there were no contraventions to the Act [––]

Foreign liaison and operational activities

As you may know, the Director has established a Foreign Operations Task Force to examine the scope and the nature of the Service’s activities abroad. The Task Force is expected to report to the Director in December. Nonetheless, over the period of review I have become aware of operational activities that raise questions about the policy framework governing the range of activities undertaken by the Service abroad. I believe that you should be apprised of them now even though there is a good likelihood that these types of circumstance will be addressed in the recommendations that flow from the Task Force.

[––]

CSIS operational policy sets out the duties of security liaison officers to liaise with foreign services and to assist the immigration program.

[––]

Conclusion

In my Certificate last year I highlighted that there had been delays in CSIS affording me and my staff access to information, reports, responses and explanations. I am pleased to report that the Services has worked with my office to bring about substantial improvements in the response time.

My experiences of the past year have reinforced the opinions I formed after my first year in this position. I have concluded that the Service exercises its duties and functions with a commendable degree of professionalism that serves Canadians well indeed. From my discussions with staff both at Headquarters and in the field I continue to be impressed with the dedication, competence and commitment of Service employees at all levels and varying lengths of service. The concerns raised above are not intended in any way to detract from the devotion or dedication of the Service or its employees to serve Canada and to counter threats to the security of the state. The issues discussed above are rather intended to promote consideration by the Director of possible adjustments to CSIS, which like all organizations must continue to evolve and adapt to be best equipped to meet the new challenges it faces, and to encourage a realistic policy discussion of the issue of foreign intelligence collection abroad by the appropriate authorities. I remain fully committed to working with CSIS in a constructive partnership to fulfill my role in supporting your Ministerial responsibility and accountability for CSIS.