Intel watchdog cancelled CSIS review because of lack of legal protection for staff

OTTAWA — A key intelligence watchdog is calling on the government to urgently review its governing law after cancelling a review of Canada’s spy agency due to a lack of proper legal protection for its staff.

The decision to cancel the review was not taken lightly, says the head of the National Security and Intelligence Review Agency (NSIRA), because the watchdog had already found “issues of concern” with the Canadian Security Intelligence Service (CSIS).

“NSIRA’s inability to proceed with this pertinent review highlights the urgency and necessity of legislative reforms intended to be a part three-year review of the National Security Act, 2017,” reads a 2024 review termination letter sent by NSIRA chair Marie Deschamps to then-Public Safety Minister Dominic LeBlanc.

A similar letter was also sent to then-CSIS Director David Vigneault. Both letters have gone largely unnoticed and unreported since it was posted quietly on NSIRA’s website in February.

At issue, the watchdog says, is the failure to include “standardized” immunity for its staff from being dragged into civil litigation related to topics they review when the NSIRA Act was passed in 2017. A simple but pressing fix, it argues.

NSIRA is Canada’s largest intelligence watchdog. It has the power to review any intelligence and defence activity conducted by a federal organization as well as investigating certain national security-related complaints.

Because of its broad review mandate and power to obtain nearly any information it wants from the organizations it reviews, NSIRA guards the identity of its employees closely.

In March 2024, NSIRA began a review of CSIS’s regional units as well as the “adequacy and accessibility” of its internal complaints process. In other words, it was looking into how well CSIS’s Canadian satellite offices were governed and if its internal whistleblower process was effective.

But within three months, the watchdog realized it had two issues. The first was that there were multiple civil lawsuits related to the very issues it was reviewing.

The second was that, unlike other federal watchdogs like the Auditor General or the Privacy Commissioner, NSIRA’s governing legislation didn’t protect its reviewers from being compelled to reveal themselves and testify about their work in a parallel civil lawsuit.

The agency doesn’t cite the litigation at issue, but a few months before the review, The Canadian Press revealed that two female employees of CSIS’s B.C. regional office had filed separate lawsuits alleging they were raped by a superior.

They also alleged their internal complaints were dismissed due to a flawed system — the same system NSIRA was reviewing.

Since there was a possibility that NSIRA staff and their work could be subpoenaed by civil litigants because there was nothing in the law to prevent it, the watchdog decided to cancel the review three months in.

Since then, NSIRA has asked both LeBlanc and current Public Safety Minister Gary Anandasangaree to add the same immunity for its reviewers from parallel civil litigation.

In an interview, NSIRA vice-chair Craig Forcese and Executive Director Charles Fugères said this was the first and only time to date the watchdog felt compelled to cancel a review because of this issue.

But they warned that it would likely impact NSIRA’s ability to conduct future reviews of intelligence issues that have a risk of associated civil litigation.

In other words, it risks creating a blind spot for the watchdog agency with the power to review nearly any intelligence or national security function in the federal government.

“We chose to do this review. We thought it was important to do this review, and we’re not doing this review right. So that’s all that’s already an undesirable outcome,” said Forcese.

“In circumstances where we know that a given topic is one that attracts civil litigation, we may decide not to proceed with the review,” he added.

Minister Anandasangaree’s office did not respond to a request for comment by time of publication.

National Post

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