Security Intelligence Review in Canada: the Supreme Court of Canada and the Security Intelligence Review Committee

Abstract

This thesis provides empirical evidence which challenges the argument articulated by Rory Leishman (2006), Andrew Petter (2010) and others that Canada’s system of governance is becoming increasingly authoritarian, as unelected judicial and quasi-judicial bodies exert greater influence over policy processes and outcomes. It also serves to inform the ongoing public discussion that Canada’s Security Intelligence Review Committee (SIRC) called for in its 2009-2010 Report regarding the future of security intelligence review in Canada and, more particularly, the question of “whether the status quo meets the goals of the Government of Canada along with the expectations of citizens (SIRC: 2010, 3).

The intent of this thesis is to examine the degree of influence that two such unelected bodies – the Supreme Court of Canada (SCC) and SIRC – are able to exert on the cabinet and Parliament in their review of the Canadian Security Intelligence Service (CSIS). The thesis will also illuminate the distinct but complementary functions of the SCC and SIRC, as external review mechanisms for the security intelligence activities of the executive branch of government.

Toward that end, the thesis employs dialogue theory as a conceptual and analytical framework. As a conceptual framework, dialogue theory postulates that a dialogue is carried on between judicial or quasi-judicial bodies and elected lawmakers, in which Parliament retains the final say. Utilizing dialogue theory as an analytical framework, the thesis examines SCC decisions and SIRC case reports related to CSIS activities, which form one side of a dialogue or exchange that occurs between the SCC and SIRC, on the one hand, and the cabinet and Parliament on the other in relation to security intelligence matters in Canada. More specifically, it examines the instances where SCC and SIRC have determined that the activities of CSIS have violated the Canadian Charter of Rights and Freedoms (Charter) enacted in 1982, the CSIS Act enacted in 1984, or any other applicable statute or regulation.

The central argument and major conclusion of this thesis is that the SCC and SIRC have shown significant respect for Parliament’s constitutional authority to make laws, and the Cabinet’s constitutional authority to conduct foreign relations, while demonstrating a strong commitment to upholding individual rights.

The evidence shows that when conducting reviews of intelligence collection activities, both the SCC and SIRC have been able to achieve the delicate balance noted in the Senate report of 1984 between the security interests of the state and the human-rights interests of its citizens.