More scrutiny of defence intelligence operations needed, security committee says

People walk on Parliament Hill in Ottawa on Tuesday, May 23, 2017. THE CANADIAN PRESS/Justin Tang

OTTAWA -- A national-security watchdog has called for stricter controls on the Canadian military's spying, including the possibility of legislation spelling out when and how defence intelligence operations can take place.

In a report issued Tuesday, the National Security and Intelligence Committee of Parliamentarians said National Defence and the Canadian Armed Forces have one of the largest intelligence programs in Canada, yet these operations get little outside scrutiny.

The committee, which examined thousands of pages and received several closed-door briefings, found that defence agencies carry out a full range of intelligence activities, collecting information through sensitive methods including technical means, human sources and investigations.

It says these activities entail considerable risks, including possible infringements on Canadians' rights.

The main source of authority for deploying the Canadian Forces and conducting defence intelligence activities is known as the Crown prerogative. It allows the government to make decisions as it sees fit unless its hands are otherwise tied by statutes or the courts.

As a result, while certain administrative directives and rules govern defence intelligence, there is no legislation that explicitly guides these activities. The committee notes this amounts to "an anomaly" in the intelligence world, given that the domestic spies at the Canadian Security Intelligence Service and the cyberspies of the Communications Security Establishment have laws spelling out what they can and cannot do.

It means the scope and authority of defence intelligence are "unknown to Canadians" and have not been subject to parliamentary scrutiny, the report says.

Also unlike CSIS and the CSE, military intelligence activities are not subject to regular review by an independent and external body, the committee adds. "Review can, among other things, strengthen accountability for an organization's compliance with the law."

The MPs and senators on the committee said the government should consider legislation to govern defence intelligence work. They also recommended the military be required to report annually on its intelligence operations.

However, National Defence and Forces officials "raised a number of concerns" with the idea of a statutory framework for intelligence, the report says.

Among them: the comparisons to Canada's major spy agencies are inappropriate because intelligence is just one of many things the military does, not its sole mission. In addition, legislation could undermine information sharing with Canada's closest allies and make the military less flexible when it comes to operations.

The committee said legislation could bring significant benefits, including greater accountability, although it would have to be "carefully crafted" to account for the military's unique mandate.

Defence Minister Harjit Sajjan said his department would look at the idea.

"There are internal processes that we have in place. Can we improve those? Of course we are looking at those," he said after a cabinet meeting Tuesday.

But he added that Canada needs to ensure "we have the flexibility to keep our soldiers safe."

At a news conference, Liberal MP David McGuinty, chairman of the committee, said the MPs and senators found "no evidence of wrongdoing" by defence personnel.

Still, the committee plans a follow-up report that will look at the military's authority and directives to collect, use, keep and distribute information and intelligence on Canadians.