Response to NSIRA’s review: Public Safety and Canadian Security Intelligence Service Accountability Mechanisms
Recommendation 1:
NSIRA recommends that whenever there is a decision affecting an active CSIS operation, which is not made by the Director of CSIS or their delegates, it must come as a direction from the Minister of Public Safety under section 6(1) of the CSIS Act and should be accompanied by a written record in keeping with section 6(2).
Government response
The Government agrees with this recommendation.
Public Safety Canada (PS) and the Canadian Security Intelligence Service (CSIS) will work to ensure decision making authorities are well understood and clear, including when interdepartmental discussions are undertaken. CSIS and PS will also reinforce the importance of enshrining all direction by the Minister of Public Safety in a written record. In cases where advanced written direction is not practicable due to exigent or extraordinary circumstances, a written record of any verbal direction should follow as soon as possible.
PS, in collaboration with CSIS, will develop a Ministerial Direction template for exigent decisions to better enable the Minister to quickly document decisions in urgent situations.
Recommendation 2:
NSIRA recommends that the Minister of Public Safety take action to ensure that the Deputy Minister obtains any information required to fulfill their responsibility to provide independent advice to the Minister about the activities and operations of CSIS.
Government response
The Government partially agrees with this recommendation.
In general terms, and amongst other functions:
- The Deputy Minister of Public Safety is responsible for advising the Minister on all matters under the Minister’s authority and responsibility and supporting the Minister through the implementation of the Government’s policy agenda. In practical terms, this means developing and maintaining the policy, accountability, and decision making frameworks to support national security and advising the Minister accordingly, including on matters for which CSIS is implicated.
- The CSIS Director is responsible, under the direction of the Minister, for the control and management of CSIS and all related matters, including advising the Minister and developing and maintaining policy, accountability, and decision-making frameworks for CSIS. The Director is also responsible for consulting the Deputy Minister of Public Safety on a range of issues including the general operational policies of the CSIS.
PS and CSIS recognize the importance of ensuring that the Deputy Minister of PS has sufficient information to fulfill their role. The 2020 PS-CSIS Framework for Cooperation increased and regularized multiple channels of communication between the organizations. The Framework would benefit from being subject to review and updates to ensure it is aligned with roles and responsibilities and implemented effectively.
Revisions could reflect that the Deputy Minister of Public Safety provides advice and support to the Minister, and the CSIS Director has a direct responsibility to keep the Minister apprised of the operations of CSIS and the fulfillment of its mandate. The Deputy Minister does not supplement or intermediate in the Director’s responsibility, including CSIS Director’s role in providing advice for policy and CSIS accountability and decision making frameworks. The Deputy Minister’s role is distinct in providing advice and support towards the policy and accountability frameworks for national security, providing input to CSIS per legislation, and fulfilling any other functions or roles directed by the Minister.
PS and CSIS will also implement an annual internal assessment and update mechanism to identify issues and obstacles to the Framework’s operationalization in this context to ensure that it continues to be fit for purpose.
Recommendation 3:
NSIRA recommends that the Minister of Public Safety consolidate ministerial directions into clear, concise and harmonized instruments that are derived from meaningful consultation among those responsible for their implementation.
Government response
The Government agrees with this recommendation.
PS and CSIS acknowledge the need for clear, concise, and harmonious instruments derived from meaningful consultation. Clarity and coherence across MDs is important to avoid interpretive ambiguity and to promote compliance. However, flexibility with regard to the exact number and character of such directions should remain and thus not all Ministerial Direction can or ought to be consolidated into a single instrument.
PS, in consultation with CSIS, DOJ and potentially other implicated departments, will review and propose revisions to existing MDs to ensure that they are clear and concise instruments with efforts to reduce overlap and discrepancies. PS and CSIS will also consider whether new or consolidated MDs are required to support ministerial accountability for CSIS.
PS, in collaboration with implicated departments, will implement a biennial internal assessment and update mechanism to identify issues and obstacles to the operationalization of MDs.
PS in consultation with CSIS, DOJ and potentially other implicated departments, will also develop a protocol for the development and consultation of future MDs to CSIS. This protocol will aim to provide guidance on drafting with clarity and concision, as well as best practices for documenting the rationale relied upon for the final text.
Recommendation 4:
NSIRA recommends that CSIS, in consultation with the Department of Justice and Global Affairs Canada, ensure that legal risk assessments are comprehensive and memorialized in writing.
Government response
The Government agrees with this recommendation.
The Government of Canada maintains that the current risk assessment process adequately and proactively assesses legal risk. Per the 2019 Ministerial Direction on Accountability, legal risk is assessed in accordance with the Department of Justice risk assessment criteria.
Discussion on or mention of non-Canadian law, including the domestic laws of foreign jurisdictions and/or international law, within other risk pillars does not automatically mean these laws pose a legal risk. A case-by-case assessment is always required.
The Government of Canada agrees that relevant partners would benefit from further consultations to ensure a shared understanding of how non-Canadian law, such as the domestic laws of foreign jurisdictions and international law, are expressed within risk assessments. The Government of Canada agrees that legal risk assessments should be memorialized in writing.
Recommendation 5:
NSIRA recommends that any pending changes to CSIS’s risk assessment process maintain a robust consultation and information sharing mechanism between Global Affairs Canada and CSIS.
Government response
The Government agrees with this recommendation.
The Minister of Foreign Affairs is the lead Minister responsible for Canada’s foreign relations and is the primary foreign policy risk holder for international implications of the Government’s security and intelligence activities. Global Affairs Canada (GAC) plays the lead role within the Canadian security and intelligence community in supporting foreign policy coherence, including through advising security and intelligence partners of the foreign policy implications and risks of the Government’s activities, both domestically and abroad. To this end, CSIS has engaged GAC to discuss updates and improvements to the existing consultation mechanisms to better codify the foreign policy risk assessment process between the two organizations.
Recommendation 6:
NSIRA recommends that Public Safety and CSIS develop a more robust consultation mechanism for reputational risk assessment for CSIS operational activities, and that these assessments account for the risk of discrediting the Government of Canada.
Government response
The Government partially agrees with this recommendation.
Reputational risk assessments should accurately account for the risk of discrediting the Government of Canada. PS and CSIS will collaborate on the development and implementation of a more robust risk assessment framework.
This will contribute to existing initiatives underway at CSIS to review and modernize their approach to holistically assessing risk, including reputational risk.
However, as noted above, the Director has sole accountability for the conduct of CSIS operations and for keeping other government departments and the Minister appropriately informed, including with respect to the risks those operations pose to Canada. As such, while CSIS will consult PS on the risk assessment framework, including interdepartmental consultation and ministerial reporting processes, PS will not play a role in assessing the risks of individual operations.
CSIS, in consultation with PS, will review and revise the existing processes to ensure they are sufficiently robust and that PS has visibility into the types of reputational issues that CSIS could experience as a result of its operations. Revisions to the Framework will consider clarifying provisions related to risk reporting to ensure the Minister has an understanding of CSIS’ risk footprint, including updates to ongoing operations.
The review and revision of existing MDs noted in the government response, in addition to the potential to create new MDs, will support refinement of the risk assessment process as required.