Summary

The report divides the relevant legislation that applies to national security institutions into two categories: national security related legislation and legislation of general application.

Of the legislation related to national security, the Emergencies Act, the Anti-terrorism Act and the Immigration and Refugee Protection Act refer to Charter rights and the need to take them into account. None of these references, however, create any reporting obligations on national security organizations or their monitoring agencies in terms of human rights issues. The Charities Registration (Security Information) Act only makes reference to "fair and transparent" decisions, while the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Security Offence Act, the Canada Evidence Act, the Criminal Code and the Income Tax Act make no reference to human rights or the Charter, nor create any relevant reporting obligations.

Legislation of general application includes the Financial Administration Act (FAA), the CHRA and the Charter. While the FAA creates general financial reporting obligations, none of the obligations contained in the FAA encompass a requirement to report on human rights issues. The CHRA and the Charter require federal institutions to comply with general anti-discrimination provisions, but they too do not create any direct obligation on national security agencies to report on their compliance with these rights.

While the legislation reviewed imposes, at best, limited human rights obligations specific to national security institutions and their monitoring agencies, the review of reports and committee appearances indicates that national security institutions recognize an obligation to identify and protect human rights. The RCMP, for example, has indicated several times in its reports that human rights principles are considered as a guide in the conduct of the organization’s operations. In committee appearances before Parliament, officials also gave considerations to human rights issues, such as profiling on the grounds of race, religion or nationality, respect for diversity in police interactions and the implications of the definition of terrorism under the Anti-terrorism Act.

The Commission for Public Complaints Against the RCMP also acknowledged human rights principles as a guide in its review of RCMP activities. Before committee, the Commission Chairman raised particular concern over racial profiling and the lack of effective auditing powers.

In its annual reports, CSIS recognized the respect of human rights as a guiding principle. Before parliament, CSIS officials reaffirmed the need to protect individual rights, expressed concern over racial profiling, and outlined strategies to address human rights issues, including employment equity and greater cultural awareness for its employees.

Both bodies that oversee CSIS – the Inspector General and SIRC – also referred to human rights issues in some form. The Inspector General referenced privacy rights, warrant requirements, and balancing rights and liberties in ensuring national security and public safety. He furthermore affirmed CSIS’s general compliance with all statutory and ministerial direction. SIRC referenced human rights considerations including the collection of information while protecting the rights of Canadians. In parliamentary appearances, SIRC officials made general statements on the need to balance individual rights with national security, and expressed concern over racial and religious profiling.

While CSE reports are not publicly available, the CSE head made a general statement during a committee appearance stating that the organization abides by the Charter. Its monitoring agency, the Office of the CSE Commissioner, also raised human rights considerations. The Commissioner made similar statements before a parliamentary committee.

The only organization that made no reference to human rights issues was the Office of the Auditor General as its mandate is to monitor financial stewardship.

Conclusion

This report began by noting that national security has been a central concern for governments and citizens alike since the events of September 11, 2001. In response to that concern, the Canadian Government has put in place new legislative measures. In the Canadian context, national security concerns must be situated against the backdrop of the Charter and the CHRA, paramount legislation that require all federal institutions to refrain from discrimination in keeping with human rights principles. As legislation has given new powers to national security agencies, concerns have been raised about proper oversight mechanisms on the use of these powers. This report, then, has two purposes. First, to assess the extent to which national security organizations and their monitoring entities are directed by legislation to consider and report on the respect of human rights principles. Second, to assess the extent to which national security organizations and their monitoring entities have reported on the respect of human rights principles.

The review indicates that the RCMP, CSIS, and the CSE have all recognized an obligation to identify and protect human rights in the context of national security. They raise human rights issues as considerations in the conduct of their activities, as guiding principles, and in response to parliamentary questions. But this reporting is voluntary and ad hoc. Although their references indicate a general awareness of human rights issues, and their staff training programs demonstrate attempts to sensitize employees to human rights, none of these agencies directly discuss human rights in terms of statutory compliance. At the same time, these agencies are not mandated by their enabling legislation or any other piece of legislation to report on human rights issues.

Similarly, the monitoring agencies (the Complaints Commission, the Inspector General, SIRC and the CSE Commissioner) are not mandated to report on human rights issues. They do, however, have certain monitoring powers that would allow them, if fully used, to exercise some human rights oversight. SIRC holds the power to audit CSIS with regard to statutory compliance, including the CHRA. The Inspector General has also the authority to confirm CSIS’s compliance with legislation. The CSE Commissioner issues statements of legislative compliance in reviewing the CSE, but it is not mandated nor required to report or consider human rights. On the other hand, the Chairman of the Complaints Commission expressed frustration with the office’s limited access to information, and requested auditing powers enjoyed by other monitoring bodies.

As this report further reveals, even though the Charter and the CHRA mandate national security organizations to consider human rights in fulfilling their activities, and they themselves recognize this obligation, there exists no legislated reporting obligation to confirm their compliance. Some monitoring agencies have the capacity to oversee human rights by means of their general monitoring authority. However, none, with the possible exception of the Complaints Commission, have explicitly used those powers to verify whether these agencies have complied with human rights legislation in the course of addressing national security issues. In spite of legal obligations outlined in the Charter and the CHRA, human rights considerations and reporting by the Canadian national security establishment appears incomplete and more like a patchwork of irregular voluntary reporting and ad hoc statements.

Developing specific legislative reporting obligations and reporting mechanisms would provide Parliamentarians with the information by which to adequately hold national security establishments accountable with regard to their obligation towards human rights protection. Because existing human rights legislation such as the Charter and CHRA create no reporting obligations, another mechanism is required to enhance human rights accountability in national security institutions.