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2 + Solicitor General Solliciteur général Canada Canada Office of the nspector General of the Canadian Security ntelligence Service Bureau de l'nspecteur général du service canadien du renseignement de sécurité "STRCTLY NECESSARY": A LEGAL CONSTRANT N THE SECTON 2 MANDATE OF THE CSS APRL, 987 KE 720.C35 C7 987 c.3 Canada

3 Office of the nspector General of the Canadian Security ntelligence Service Bureau de l'nspecteur général du service canadien du renseignement de sécurité Suite "A", 3rd Floor 340 Laurier Avenue West Ottawa, Canada K A 0 P8 (63) Suite "A", 3 e étage 340 ouest avenue Laurier Ottawa, Canada KA 0 P8 (63)

4 KE c3s- C]i 9%7 c OCT "STRCTLY NECESSARY": A LEGAL CONSTRANT N THE SECTON 2 MANDATE OF THE CSS APRL, 987 Office of the nspector General of the Canadian Security ntelligence Service

5 i - A. NTRODUCTON T A B L E O F C O N T E N T S B. ROLE OF THE "STRCTLY NECESSARY" STANDARD. Legislative Background 4 (a) The McDonald Commission 4 (b) Bill C-57 and the Special Senate Committee 6 (c) Bill C-9 8 (d) Summary 9 2. Statutory Construction 9 C. SSUES OF NTERPRETATON 2 l. To What Activities Does the "Strictly Necessary" Standard Apply? 2 (a) Where the Standard Obviously Applies 2 (b) More Difficult Questions of Application 4 (i) At what stage does the standard 5 become applicable? (ii) Does the standard apply where the 6 CSS is the passive beneficiary of information? 2. "Strictly Necessary" to What End? 9 3. Who Determines What is "Strictly Necessary"? 22 D. PRNCPLES OR GUDELNES 27 E. CONCLUSON 32 4

6 A. NTRODUCTON Section 2 of the Canadian Security ntelligence Service Act expresses the primary mandate of the Service. t provides as follows: The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada. On a first reading of this section it seems immediately apparent that the words "strictly necessary" are of critical importance to the question of what activities can be validly authorized under the primary mandate. At the same time, the "strictly necessary" restriction, or standard, raises many difficult questions of interpretation and application. The nspector General was convinced at an early stage that it was essential for the Service to have guidelines as to the meaning of its mandate. Guidelines are necessary to ensure that the Service itself and its members have an appropriate understanding of the legal constraints on its operational decisions and activities. Shortly after assuming his duties, the nspector General arranged for preliminary legal research to be conducted on the primary mandate of the CSS. A research paper on the meaning of section 2 was produced and circulated in the Spring of 985 to the CSS, the Review Committee, the Privy Council Office, the

7 Minister, the Deputy Solicitor General and the Deputy Minister of Justice. t was hoped that this initiative on the part of the nspector General would stimulate discussion and might eventually lead to common understandings with the CSS as to the appropriate interpretation of its primary mandate. The Service has yet to develop guidelines that the nspector General would consider appropriate. The absence of a set of interpretive guidelines or principles regarding the scope of the section 2 mandate does not mean that the CSS, in carrying out its duties pursuant to section 2, has over-reached its legislative authority. ndeed, the process which the Service has established in relation to targetting should go some way towards ensuring that the primary mandate is not being interpreted in an overly-expansive manner. Nevertheless, while it is not impossible to achieve compliance in the absence of interpretive guidelines, and, conversely, while the existence of guidelines would not ensure compliance, the nspector General continues to believe that some statement of guidelines or principles regarding the legislative restrictions on the primary mandate, including the "strictly necessary" standard, should be adopted if those restrictions are to be made meaningful and uniformly applied. n this respect, it cannot be emphasized too strongly that what is at issue is a question of the legality of CSS conduct: if the "strictly necessary" standard is not met, the mandate has been exceeded and the collection of information is not authorized. This simple fact makes it imperative that the nspector General, at least, charged as he is with assessing legality, develop a set of principles or guidelines which can be applied to assist in measuring whether, in his judgment, the legislative restrictions in section 2 are being complied with.

8 n undertaking such an exercise, it is recognized that the legislative mandate in section 2 cannot be neatly divided into its constituent parts and analysed on a piecemeal basis. For example, the "strictly necessary" standard cannot be conclusively interpreted in isolation from the remainder of the section. Rather, the meaning and application of that standard is necessarily coloured by the other restrictions on the mandate found in section 2, particularly the requirement that information and intelligence collection be limited to "activities that may on reasonable grounds be suspected of constituting threats to the security of Canada" and the exclusion of "lawful advocacy, protest or dissent" from the definition of such activities. Thus, in working towards a statement of principles or guidelines regarding the scope of the primary mandate, the "strictly necesssary" standard is only one of the limiting factors that must be examined. Nevertheless, all journeys must begin with a single step and, in interpreting the section 2 mandate, a preliminary analysis of the "strictly necessary" standard provides a logical starting point. To that end, there follows an analysis of the role and function which the "strictly necessary" standard was apparently intended by Parliament to fulfill, an outline of some of the difficult issues which must be examined and resolved in coming to grips with that standard, and an initial attempt to sketch some of the principles or guidelines which the nspector General may wish to take into consideration in monitoring the compliance of the CSS with the standard in the future.

9 4 B. ROLE OF THE "STRCTLY NECESSARY" STANDARD. Legislative Background n interpreting the words "strictly necessary" and the role they are designed to serve in modifying the primary mandate of the CSS, it is instructive to review the legislative history of the phrase. That history, although not conclusive in a legal sense, assists in discerning the probable intentions of Parliament in including the words and provides a basis for understanding the function they were intended to serve. a) The McDonald Commission The words "strictly necessary" have their direct origin in the Report of the McDonald Commission. The Commission, following its review of the past performance of the RCMP Security Service, concluded that many of the deficiencies in that performance stemmed from a diffuse and ambiguous mandate which had never been provided for in legislation. This led to a state of affairs where the definition of the proper limits of security intelligence activities was left to the unfettered discretion of the Government, or of the security agency itself in the absence of direction by the Government, with the unhappy consequence that RCMP activities sometimes went beyond, and sometimes fell short of, the actual requirements of the security of Canada. Consequently, one of the Commission's key recommendations was that any new civilian security service be governed by a clearly defined legislative mandate which would fix the boundaries of its activities. [See: Second Report of the McDonald Commission, p. 428]

10 5 n the Commission's view, a statutory mandate would perform two functions: first, it would provide a definition of the types of activities which, in Parliament's view, constitute threats to the security of Canada; second, it would confine the information-gathering activities of the Security Service by requiring that they be directed only toward such threats. At the same time, it was recognized that any legislative definition of threats to security would necessarily be cast in general terms and, as a result, would be subject to interpretation by those responsible for implementing the legislation. Accordingly, the Commission cautioned that such officials...must not see the general statutory definitions of the agency's mandate as something that may be stretched to cover what they personally believe are threats to Canada's security. [Second Report of the McDonald Commission, p. 442] t was presumably to guard against the danger of an "overly-elastic" interpretation of the Service's basic mandate that the Commission recommended that a two-pronged limiting clause be included in the statutory mandate. One aspect of the recommended limitation was the exclusion of lawful advocacy, protest or dissent from the scope of threats to national security, the precedent for which was found in New Zealand legislation. The other component was the addition of a clause indicating that the agency's work should be limited to what is strictly necessary for the purpose of protecting the security of Canada. The origin of the latter restriction was found in a Directive issued by the British Secretary of State for the Home Department (Sir David Maxwell Fyfe) in 952 to the Director General of the British Security Service. That Directive provided, in part, as follows:

11 6-2. The Security Service is part of the Defence Forces of the country. ts task is the Defence of the Realm as a whole, from external and internal dangers arising from attempts at espionage and sabotage, or from actions of persons and organizations whether directed from within or without the country, which may be judged to be subversive of the State. 3. You will take special care to see that the work of the Security Service is strictly limited to what is necessary for the purpose of this task. [Cited in Second Report of the McDonald Commission, p. 442] The Commission borrowed the words "strictly necessary" from the British Directive with a view to restricting the activities of the Service by making it "... more likely that those who direct and carry out security work will keep in mind the danger to liberty which can result from an overly expansive interpretation of the security intelligence agency's mandate." [Second Report of the McDonald Commission, p. 443] The "strictly necessary" standard was to be a constant reminder of the need to balance the requirements of security with the requirements of democracy. The Commission's views on the nature of an appropriate limitation clause was embodied in Recommendation 4 of its Second Report [p. 443] provides as follows: WE RECOMMEND THAT the legislation establishing Canada's security intelligence agency contain a clause indicating that the agency's work should be limited to what is strictly necessary for the purpose of protecting the security of Canada and that the security intelligence agency should not investigate any person or group solely on the basis of that person's or group's participation in lawful advocacy, protest or dissent. b) Bill C-57 and the Special Senate Committee The Government's response to the McDonald Commission Report, as exhibited in Bill C-57, did not adopt the limiting phrase "strictly necessary" in the context of defining the primary

12 mandate of the new civilian security service which was to be created by the legislation. Rather, clause 4 of that Bill provided as follows: 4. () The Service shall collect, by investigation or otherwise, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada. (2) Nothing in this Act restricts the Service from remaining informed about the political, economic and social environment within Canada and matters affecting that environment. (3) Nothing in this Act authorizes the Service to investigate the affairs or activities of any person or group of persons solely on the basis of the participation by that person or group in lawful advocacy, protest or dissent. t is possible that the absence of the "strictly necessary" limitation in Bill C-57 reflected a conscious decision on the part of the Government either that such a standard was too strict and, therefore, undesirable, or that it was redundant and, therefore, unnecessary. Certain comments made by the 'Honourable Robert Kaplan during his testimony before the Special Senate Committee appointed to consider the Bill, point to the latter conclusion. When asked about the absence of the "strictly necessary" standard, Mr. Kaplan stated as follows: Clause 4(3) deals with that. However, there is another clause that feel ought to be recognized as playing a part in this, and that is clause 29(2)(b). Clause 29(2)(b) is the mandate of the inspector general. What we are asking Parliament to tell the inspector general is that, even an activity which does constitute a threat to the security of Canada should be a target of surveillance with restraint and that the restraint should be justified

13 8 f in the situation. Therefore, even.in a case where one has identified a threat to the security of Canada, there is an assurance here or an effort to provide an assurance, the effectiveness of which invite parliamentarians to consider. t should be the subject of review to be sure that it is not unreasonable and not unnecessary use of intrusive powers. Even against targets, we are not giving a carte blanche. Even against a legitimate target there are safeguards to assure restraint by this agency. [Proceedings of the Special Committee of the Senate on the Canadian Security ntelligence Service, July 8, 983, ssue No. p.:94] Other witnesses appearing before the Committee, however, apparently did not agree with Mr. Kaplan's assessment that the mandate of the nspector General would be a sufficient deterrent to the unnecessary or unreasonable use of powers by the CSS and called for the inclusion of the words recommended by McDonald. n its Report, the Senate Committee endorsed the views of such witnesses and recommended "...that there be included in.the statute words which would indicate that the agency's mandate should not be given an overly expansive interpretation". [Report of the Special Senate Committee on the Canadian Security ntelligence Service, p. 2] The Committee then referred specifically to the relevant part of Recommendation 4 of the McDonald Report, making it clear that it was the "strictly necessary" wording which it had in mind as representing "an immediate limitation on the primary function" of the proposed security agency. c) Bill C-9 When new legislation in the form of Bill C-9 was introduced in the House of Commons following the Report of the Senate Committee, it contained section 2 as it now appears in the CSS Act. n relation to the inclusion of the words "strictly necessary", Mr. Kaplan stated:

14 should also point out that the mandate, as reworded in the Bill before you, limits all security investigations to those that are "strictly necessary" in the interests of national security. This is a clear signal that the mandate is to be interpreted narrowly. Only if it is demonstrably necessary for national security will an investigation be supported by this mandate. [Debates of the House of Commons, February 0, 984, 274] During the study of Bill C-9 in Committee it was suggested that the "strictly necessary" phrase should be elaborated by the addition of the words "for the purpose of protecting the security of Canada". [See: Proceedings of the Senate Standing Committee on Legal and Constitutional Affairs, June 27, 984, ssue No. 9 at 9: - 9:3] The proposed addition was, however, rejected and the section was enacted without amendments. d) Summary n sum, the legislative history of the words "strictly necessary" as they appear in section 2 of the CSS Act indicate that they were originally conceived of, and eventually included in the legislation, as an important limitation on the primary mandate of the Service. They were to act as a brake or check on all information and intelligence collection activities undertaken under the auspices of section 2 in order to restrict such activities to an appropriate sphere. They were also to be a constant reminder of the need to balance the requirements of security with the requirements of democracy and individual freedom. 2. Statutory Construction Turning to statutory construction as a means to determine how the phrase "strictly necessary" should be interp'reted, it is well-settled that:

15 the words of an Act are to be read in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [C.A. Driedger, Construction of Statutes, 2nd Ed., 983, p. 87] Generally, it is only when there is some ambiguity in the meaning of words that extrinsic sources can be resorted to as aids to construction. Even then, extrinsic evidence is to be reviewed only to provide some indication of the aims of the legislating body, and the "mischiefs" which it intended to curb through the use of particular words, rather than to determine the proper construction of such words per se. n the case of the words "strictly necessary" some ambiguity can be said to exist in that the word "necessary" is open to a range of possible meanings, varying in degree from connoting that which may be merely convenient or useful to that which is absolutely requisite or indispensible. Because the word "necessary" is modified by the adverb "strictly", however, it seems likely that it is the latter meaning of "necessary" which is more appropriate. The Shorter Oxford English Dictionary defines "strictly", in the context of being a quality or condition, as a line of action "... maintained to the full admitting of no deviation or abatement, absolute, entire...". t seems unlikely that such a modifier would have been used if "necessary" were intended to mean only that which is merely convenient or useful. On the other hand, it makes complete sense to use the word "strictly" if "necessary" means that which is absolutely requisite or indispensible. Furthermore, referring back to the legislative history of the phrase as outlined above, and to the mischief it was intended to remedy, it is not difficult to conclude that "strictly necessary", if it is to be interpreted in such a way as to

16 - - prevent an "overly expansive interpretation of the CSS mandate" must be interpreted in its narrower sense rather than its broader sense. f it is to fulfill the function apparently envisioned for it by its drafters, "strictly necessary" should not be a loose or elastic term which could validate all investigations undertaken by the CSS pursuant to section 2 as long as they could be said to be merely relevant or reasonably related to the performance of its primary mandate. n conclusion, statutory construction of the phrase "strictly necessary" supports an interpretation of it which is entirely consistent with what can be concluded about the phrase following a review of its legislative history. That is: that it is intended to be an important control mechanism on the exercise of the primary mandate of the CSS; that it is intended to impose a stringent standard; that it is intended to operate as a preliminary restraint on CSS activities in the interest of ensuring that democratic rights and freedoms are not invaded without a significant degree of justification.

17 - 2 - C. SSUES OF NTERPRETATON t r r t Although, in light of the above, it may seem apparent that Parliament intended the "strictly necessary "standard to play an important role in defining and limiting the primary mandate of the CSS, it is less clear how that standard can be applied on a workable day-to-day basis, either by those who direct or carry out the section 2 activities of the Service, or by those who review its performance. Before an attempt can be made to develop guidelines or principles regarding the "strictly necessary" standard, several preliminary issues of interpretation should be outlined. n particular, the words "strictly necessary" beg certain questions such as: "strictly for what?" and "strictly necessary" in whose view?. Additionally, there is an important question regarding which CSS activities should be considered governed by the "strictly necessary" standard. These issues are discussed below.. To What Activities Does the "Strictly Necessary" Standard Apply? a) Where the Standard Obviously Applies The words "strictly necessary" in section 2 provide a statutory standard that relates to and qualifies the fundamental duty imposed on the Service to collect information and intelligence respecting threats to the security of Canada. n a sense, the "strictly necessary" standard is Parliament's legislated response to the series of basic questions which inevitably arise when the CSS endeavours to carry out its section 2 mandate. t is Parliament's answer to questions such as:

18 - 3 - When can information and intelligence be collected? - Only when it is "strictly necessary" to do so. From whom can information and intelligence be collected? - Only from those of whom it is "strictly necessary" to do so. How can information and intelligence be collected? - Only through such techniques as are "strictly necessary" in the circumstances. What information and intelligence can be collected? - Only as much as is "strictly necessary" for the purpose at hand. Moreover, while it is true that the "strictly necessary" standard does not directly apply to the other duties referred to in section 2, it would logically follow that, for the most part, it is only information which has been validly gathered in accordance with the "strictly necessary" standard that can be subsequently analysed, retained and reported upon. n this way, it could be said that the "strictly necessary" standard acts as a preliminary limitation which colours the entire section and influences all the duties and functions authorized therein. There are at least two points where the "strictly necessary" standard would obviously come into play in CSS decision-making. These are: (i) (ii) When an initial decision is made to target a.particular individual, group, organization or activity for the purpose of collecting information and intelligence; and When a decision must be made as to precisely what information and intelligence should be collected pursuant to a targetting decision.

19 - 4 - i ^ During the first stage, at least in relation to those investigations where the decision to target occurs on a fairly regularized basis, the "strictly necessary" standard will be reflected to a large extent in the procedural safeguards adopted to ensure that decisions are made only on the basis of adequate information and that the intrusiveness of the techniques authorized is justified by the particular circumstances which exist in a given case. Because of the regularity and record-keeping involved in the formalized targetting process the tâsk of the nspector General in reviewing the application of the "strictly necessary" standard will be made easier. On the other hand, during the second stage, decisions as to what should be collected are made in the field, are less regularized, and, consequently, will be more difficult to review. The application of the standard at the two different stages thus presents different sets of difficulties. b) More Difficult Questions of Application t More serious problems of interpretation and application arise when there is uncertainty about whether or not there has been something which amounts to a "collection" of information by the CSS for section 2 purposes. t is likely, for example, that when the CSS is involved in accumulating general background information regarding the social, political or economic climates of Canada or of other nations, it is not collecting information regarding possible threats to the security of Canada and, therefore, its activities do not fall within section 2 and the "strictly necessary" standard has no real role to play. More doubtfully, it might be suggested that when the CSS is merely acquiring sufficient information, in a preliminary way, in order to put itself in a position to make a formal targetting decision, it is not yet collecting information and intelligence within the meaning of section 2 and the "strictly necessary"

20 - 5 - standard either should not apply at all or, should not apply with full vigour. Finally, it might be argued that where there are no active steps taken by the CSS towards the "collection" of particular threat-related information, but the Service is merely the "passive beneficiary" of such information, the "strictly necessary" standard should not apply. Resolution of the latter two issues depends to a large extent upon what activities appear to be contemplated by the word "collect" in section 2. i) At what stage does the standard become applicable? The Shorter Oxford English Dictionary defines the verb "collect" in its relevant sense as: To assemble, accumulate, bring or come together; get (taxes, contributions, goods to be serviced, etc.) from a number of people... The verb "collect" in section 2 would therefore appear to cover any active steps taken by the CSS to gather information regarding activities which "may on reasonable grounds be suspected of constituting threats to the security of Canada". n other words, at least once a particular activity has been identified, on a reasonable grounds basis, as constituting a threat, any subsequent information-gathering actively pursued by the CSS in relation to that activity should be seen as subject to the full requirements of the "strictly necessary" standard regardless of the level of investigation, its degree of intrusiveness, or the sources of information to be utilized. This does not mean, however, that the standard will mean the same thing in the context of a low-level investigation, involving little intrusiveness and open sources, as it will in

21 - 6 - the context of a high-level investigation, involving a high degree of intrusiveness and covert sources. What is "strictly necessary" in a given case must always depend on the peculiar circumstances applicable to it including, in particular, matters such as the stage of the investigation, the methods to be used, and the nature of the information to be gathered. f the above is the correct approach, it follows that there may be a realm of pre-targetting information gathering for the purpose of threat-assessment, where the investigation remains so generalized and unobtrusive that the "strictly necessary" standard will not be difficult to meet. Then, as the investigation begins to focus more directly on specific individuals or groups, and as more intrusive techniques are employed, the rationale for the application of the "strictly necessary" standard becomes more compelling and that standard becomes more demanding. Thus, rather than suggest that there is some stage of information-gathering related to threats to the security of Canada at which the standard does not apply at all, it is probably more accurate to say that the standard is always applicable to such information-gathering but that at some stages it presents a less formidable hurdle than at others. ii) Does the standard apply where the CSS is the passive beneficiary of information? The concept of "collecting" information probably also requires some degree of intentional behavior, je. an intention to collect, before the acquisition of information falls within the parameters of section 2. This point relates to the issue of whether information which has been "passively received" by the CSS has been "collected" within the meaning of section 2 and, accordingly, whether the "strictly necessary" standard might apply to any subsequent dealing with that information. There are at least two important categories of such information:

22 - 7 - (i) (ii) All information "inherited" by the CSS from the pre-css Act days of the RCMP Security Service; Unsolicited information received by the CSS from external sources which the Service may wish to either: a) retain; or b) pass on to someone else. Pre-CSS Act nformation The first category, pre-css Act information is obviously of critical interest. Technically speaking, it may be difficult to say that the CSS has "collected" information inherited from the RCMP since it pre-dates the Service and the Service presumably took no active steps to acquire it. Furthermore, it might be argued that the CSS Act is not intended to have any retroactive effect and to apply CSS Act standards to information gathered prior to the Act would be to give it such an effect. And, in light of the "staleness" of the information concerned, as well as the huge quantity of it, it would obviously present tremendous logistical problems if the Service were now required to review the RCMP material to cull information on the basis of some formula which reflects current standards of relevance, reliability or necessity. ndeed, the question of what standard could or should be applied in such an exercise would be a difficult one. On the other hand, it might also be suggested that it would be ironic if the information inherited from the time of the RCMP Security Service were not required to meet any standards whatsoever whereas all post-css Act information collection activities under section 2 are subject to the "strictly necessary" standard. Such an outcome would, in fact, create two

23 - 8 - classes of citizens - those who attracted the attention of the RCMP Security Service prior to the CSS Act, and those who did not - with the former class at a disadvantage as compared to the latter. Given the hard-hitting criticism by the McDonald Commission of many of the RCMP Security Service's information-collection activities, particularly in relation to the over-breadth of such activities, and given the spirit and object of the CSS Act, it might be reasonable to conclude that, at the least, RCMP information should be utilized by the Service with some degree of caution and reticence. ndeed, it could be said that the CSS itself recognized this when it conducted a review of all targetting operations inherited from the RCMP shortly after transition. Whether or not the Service should now go beyond this and attempt to apply some form of "strictly necessary" standard in relation to the retention and use of information inherited from the RCMP will be a matter of further consideration by the nspector General during the coming year. At present, the nspector General is inclined to the view that some degree of purging of the RCMP files, in accordance with some formulation of current standards, is necessary if Parliament's intentions are to be fulfilled. Unsolicited nformation n the case of unsolicited information, there is again a degree of passivity on the part of CSS which makes it difficult to say there has been a collection of information within the meaning of section 2. However, in this case, whether the "strictly necessary" standard should apply or not probably depends on what the CSS intends to do with the information. For example:

24 - 9 - r a) f the information is seen as not useful to the Service from the point of view of section 2, and there is no retention of it for those purposes either in the sense of recording it for possible future reference, or otherwise, there has been no intentional "collection" - the information is presumably forgotten except to the intent that it may be retained in the memories of the Service personnel who knew about it. The "strictly necessary" standard need not apply. f the information is seen as being of possible future use in relation to section 2 purposes, and is recorded either in an existing file or in a new file with the intention that it may be referred to in the future for security and intelligence purposes, then there has been a form of "collection" of information. An active step has been taken by the Service and the "strictly necessary" standard should apply. f it were otherwise, the limitations found in section 2 could easily be avoided by allowing external agencies to "feed" the Service with information which the Service itself could not validly collect. Such an outcome should obviously be avoided if the intent of section 2 is to be observed. C) f the information is not useful to the CSS but the Service acts merely as a conduit by passing on information it has passively received from an external source to others (assuming this is lawful either because the information falls outside the section 9 restrictions altogether, if that is possible, or because the section 9 requirements are met) then, again there has been no "collection" by the Service of the information in question. The Service has taken no active steps either to secure the information initially, or to retain it subsequently. The "strictly necessary" standard does not apply. 2. "Strictly Necessary" to What End? During the course of submissions made to the Standing Committee on Justice and Legal Affairs in its review of Bill C-9, it was pointed out that "... the words 'to the extent that it is

25 strictly necessary' beg the question, 'necessary to what'?". [See: Submissions of the Hon. G. Lane to the Standing Committee on Justice and Legal Affairs Regarding Bill C-9 at p.6] As noted above, a suggestion that the words "for the purpose of protecting the security of Canada" be added to the phrase was ultimately rejected. However, the context in which the words "strictly necessary" appear, and the entire thrust of section 2, make it arguable that that purpose is at least implicitly expressed in the language. Such a conclusion is also supported by the legislative history of the section outlined above in that: (a) (b) (c) the model which the McDonald Commission referred to in recommending the phrase - the Fyfe Directive - uses the words "strictly... necessary" in the context of limiting the British Security Service to such activities as would be necessary for accomplishing its task, i.e. the "Defence of the Realm"; Recommendation 4 of the McDonald Commission Report used the phrase "strictly necessary for the purposes of protecting the security of Canada..."; The Honourable Robert Kaplan in introducing the legislation and speaking to section 2 stated that it limits security investigations to those that are "strictly necessary" in the interests of national security". However, it is important to remember that the CSS Act nowhere defines "security of Canada" but rather defines "threats to the security of Canada" and relates the section 2 mandate to the collection of information and intelligence regarding such threats. Also, it is significant that the McDonald Commission, in outlining what should be the primary function of a civilian security service, stressed that such a service must collect information about threats, and analyse and report upon it, for the purpose of providing advance warning and advice to the

26 - 2 - Government so that appropriate preventive or counter measures can be taken. 'Thus, it might be more accurate to suggest that section 2 limits the CSS to collecting information insofar as it is strictly necessary for the purpose of providing accurate advance warning and advice to the Government about threats to the security of Canada so that the Government can then act to protect that security. ndeed, the fact that the CSS is intended to play an advance warning function must always be taken into consideration when interpreting the "strictly necessary" standard and determining whether it has been met. The duty of the Service to act in a preventative or proactive way before damage to Canadian security occurs will shape its approach to information and intelligence gathering and will directly effect the question of what is "strictly necessary" in the circumstances. Finally, in this context, the role of the "strictly necessary" standard as a guardian of democratic freedoms and individual liberties must not be lost sight of. n carrying out its primary mandate, the CSS must be concerned not only with its role in maintaining national security, but also with its obligation to observe the restrictions on its mandate so that it will not itself impinge upon those rights and freedoms which it exists to protect. The Service's zeal for upholding national security must not be allowed to outweigh its committment to the civil rights of citizens. The right balance between the two competing interests must continuously be sought. The dilemma of the Service in doing so was aptly described by the Honourable Senator Michael Pitfield, Chairman of the Special Senate Committee, as follows:

27 22 - r r The raison d'être of a security service is the maintenance of a free and democratic society. But if an agency has too much, or inadequately controlled power, it can be a threat to individual rights. On the other hand, if the security of the state is not sufficiently protected, there is a danger of the weakening of a society in which freedom and democracy should flourish. [Debates of the Senate, st Session, 32nd Parl., Nov. 3, 983, 63] The "strictly necessary" standard serves the purposé of assisting the CSS, its review agencies, and the Government in finding the appropriate balance between the demands of national security and the demands of freedom and democracy. r t t 3. Who Determines What is "Strictly Necessary"? Another issue which arises.in interpreting the words "strictly necessary" is: to whom do they speak? Who should decide whether or not, or to what extent, the collection of information and intelligence is "strictly necessary"? A useful way of looking at this question is to consider what, in legal terms, section 2 is all about. Section 2 bestows on a statutory agency a particular duty and, implicitly, a corresponding power to carry out that duty. Without section 2, as a statutory entity, the CSS would have no official capacity to do the things the section refers to; because of section 2, on the other hand, the CSS has not only been authorized to carry out its information and intelligence-gathering function, but has been required to do so. At the same time, in bestowing powers and duties on the CSS through section 2, Parliament has carefully limited the scope of the authority granted, one of the key restrictions being found in the "strictly necessary" standard. t is true that, in carrying out its section 2 mandate, it inevitably falls upon ^

28 the Service to make decision in the first instance about how to do so. Among other things, it must decide what is "strictly necessary" in terms of information and intelligence collection, and what is not. n that sense, the CSS has a power to decide and a measure of discretion in doing so. Any such discretion is, however, tightly circumscribed or fettered by the "strictly necessary" standard which limits CSS.discretion to decide how, what, when and from whom information and intelligence can be collected. Furthermore, this standard is an objective one which could, in theory, be applied by the courts to measure the legality of CSS activities should such activities ever come before the judicial system in the form of a justifiable question. Although the latter event is unlikely, this does not detract from the important role of the statutory standard as a legislative curb on CSS activities. ndeed, it could be argued that because the CSS must operate under a veil of secrecy, which means it is unlikely to be subject to judicial control, it is all the more necessary that those responsible for directing, carrying-out and reviewing CSS activities must vigilantly apply the statutory standard to all information and intelligence collection under section 2. Thus, because the executive must not ask the CSS to exceed its mandate, the "strictly necessary" standard must first play a role when national intelligence requirements and priorities are initially determined. t must then play a role when senior officials of the CSS make decisions about targetting or when CSS operatives are carrying out their functions in the field. Finally, it must play a role when those who review CSS activities, such as internal auditors, the nspector General, and the Security ntelligence Review Committee, perform their functions. deally, all those involved in triggering,

29 implementing, and reviewing section 2 information and intelligence collection activities should ask themselves at every step whether the particular activity in question is "strictly necessary". This, of course, begs the major question of who will have the "final say" as to whether something is "strictly necessary" or not. n answering the latter question, it must first be pointed out that the application of the standard is imperative. n strict terms, if the statutory standard is not met - if a particular information-gathering activity is not "strictly necessary" - it is not authorized under the Act. Secondly, it must be reiterated that the standard is not a subjective one; it is not what is "strictly necessary" in the opinion of the CSS, or in the opinion of the Minister, that is authorized but what is "strictly necessary", presumably in an objective sense, that is permissible. This means that it is what is "strictly necessary" as determined by the law itself that is authorized and the final arbiters of the law are the courts. So, in theory, it is only what is "strictly necessary" as would be determined in a court of law that is encompassed within the mandate. On the other hand, as noted above, there is necessarily some realm of discretion given to those responsible for directing and carrying out the CSS activities under section 2 in initially determining what should and should not be investigated. t then falls upon those who have the responsibility to review the conduct of the Service, whether it be internal auditors, the nspector General or the Security ntelligence Review Committee, to determine if that exercise of discretion was appropriate and if, in their judgement, the standard was breached in any given instance.

30 n this respect, it must be noted that the scheme of the Act admits of the possibility of conflicting opinions at every stage as to what is "strictly necessary." Moreover the unlikelihood of judicial review means the courts (leaving aside the warrant process) will not have the opportunity to perform the role of a final arbiter. n the absence of a judicial resolution, it is suggested that it is the responsibility of the nspector General to determine whether or not the statutory standard has been met in a given instance. This is consistent not only with the general scheme of the Act, which places so much reliance on the role of the review agencies in controlling the activities of the CSS, but also with the specific wording of the nspector General's mandate in section 33(2) of the Act which provides: 33(2) As soon as practicable after receiving a copy of [the Director's report]... the nspector General shall submit to the Minister a certificate stating the extent to which the nspector General is satisfied with the report and whether any act or thing done by the Service in the course of its operational activities during the period to which the report relates is, in the opinion of the nspector General, (a) (b) not authorized by or under this Act or contravenes any directions issued by the Minister under subsection 6(2); or involves an unreasonable or unnecessary exercise by the Service of any of its powers. [emphasis added] Thus, the Act specifically requires the nspector General to express his opinion as to whether the statute is being complied with or whether powers are being abused. n particular, there would appear to be a clear linkage between the "strictly necessary" standard in section 2 and the nspector General's duty to advise the Minister as to whether there has been any "unnecessary exercise by the Service of any of its powers". n other words, the Act provides a clear direction that the

31 nspector General must monitor the application by the Service of the "strictly necessary" standard, must form an opinion as to whether it is being observed, and must advise the Minister of that opinion. This form of internal review to some extent acts as a substitute for external judicial review and is clearly intended to fulfill a similar role, namely, ensuring the legality of CSS conduct. While it is true that the nspector General, unlike a court, has no direct means to enforce his opinions regarding the lawfulness of CSS conduct, it is also beyond doubt that Parliament intended that his views be taken into account by both the Minister and the Security ntelligence Review Committee. ndeed, assuming the latter is in accord with the nspector General's opinion as to the legality of particular CSS activities, the possibility of ultimate resort to the political forum through the Review Committee's report to Parliament provides one mechanism for ensuring that the views of the nspector General are accorded serious influence. Short of that, of course, there is no reason to suppose that the Minister, or indeed the CSS itself, will fail to give effect to the nspector General's opinions. ndeed, it is obviously to be hoped that the CSS and the nspector General can work co-operatively together in the interest of effective implementation of the legislation in accordance with its spirit and intent and avoid serious differences of opinion on what is "strictly necessary" under section 2 and what is not. A shared set of basic principles and interpretive guidelines regarding that standard would go a long way towards removing the potential for serious disagreement regarding whether or not particular information-gathering activities are authorized under the section 2 mandate.

32 D. PRNCPLES OR GUDELNES t has been determined above that the "strictly necessary" standard was intended to fûlfill an important role in limiting the activities of CSS in the interest of individual and democratic rights and freedoms. t has also been suggested that the standard influences the entire section 2 mandate and should be constantly and consciously applied by all those involved in directing, implementing and reviewing CSS activities under that mandate. The question remains: how can the standard be made meaningful on a daily basis? Can principles or guidelines be developed which would assist those who must apply the "strictly necessary" test in the decision-making process, particularly in relation to targetting? t can be readily admitted that it will be difficult to develop a strict set of criteria which can be applied in every case. ndeed, as suggested earlier, the question of what is "strictly necessary" must always be judged in light of the particular circumstances at hand, and these circumstances will be infinitely variable. This means guidelines must be sufficiently general and flexible to accommodate the broad range of circumstances which face a security intelligence agency in performing its functions. On the other hand the guidelines must also reflect the purpose of the "strictly necessary" standard as an important limit on CSS conduct established in the interest of preserving democratic rights and functions. Thus, in any attempt to develop guidelines or principles it will be necessary to steer a course between defining the "strictly necessary" standard in such a way as to allow too much flexibility and expansiveness (which would authorize too much) and defining it in such a way as to allow too little flexibility (which would hamstring the CSS).

33 n the latter respect, it must be remembered that CSS has a duty not only to refrain from collecting anything that is not "strictly necessary" but also an equal duty to collect everything that is "strictly necessary" in order for it to fulfill its bell-wether function. t must therefore steer a middle course between the Scylla of collecting too much information and the Charybdis of collecting too little. Specifying basic principles and preliminary guidelines in relation to implementing the "strictly necessary" standard could aid the CSS in navigating its way through the dangers of taking too much action or taking too little. There follows an outline of suggested basic principles and preliminary guidelines which could be considered for that purpose. This outline is not exhaustive nor final; rather, it is a starting point from which, it is hoped, a more comprehensive statement of interpretive guidelines and principles can be developed in the future. Starting Principles. The CSS Act operates on the understanding that the individual has a right to privacy and a right to be "left alone" by the State. These rights are clearly reinforced by the democratic rights and freedoms entrenched in the Canadian Charter of Rights and Freedoms and the Charter applies to the activities of the CSS.. This means that there should generally be no collection of specific information regarding individuals or groups unless and until justification can be shown. 2. f an investigation (ie. information and intelligence gathering of any kind) is proposed, the onus should be on the Service to show why it is "strictly necessary" to conduct it.

34 f there is any doubt about whether or not an investigation is "strictly necessary" that doubt should be resolved in favour of the privacy of the individual and the investigation should not be conducted. Guidelines for mplementation of the "Strictly Necessary" Standard 4. The first step in any "justification" process should be to clearly identify the nature of the threat which is reasonably suspected and to specify the grounds on which the suspicion exists. At this stage, too, the investigation should be clearly assigned to one or more of the "threat categories" specified in section 2. The question of whether or not or what type of investigation is "strictly necessary" should be directly related to the significance or seriousness of the perceived threat. 5. t is reasonable as well that the threshold test in relation to justifying an investigation as "strictly necessary" should vary in relation to the type of investigation that is proposed. This was contemplated by the McDonald Commission which recognized that those who commence the investigative process could never have the benefit of hindsight in determining whether a threat truly exists or not. At page 428 of its second report, the Commission stated as follows: in proposing statutory limits on security intelligence surveillance, we must acknowledge that when the security intelligence agency begins to collect information on a subject it cannot always be expected to know, or to have reason to believe, that a particular individual or group is in fact engaging in one of those activities defined by Parliament to be a proper subject of security intelligence

35 surveillance.... A basic principle in the system of controls we shall propose for the use of these [intelligence collection] techniques is that the more the use of a technique encroaches on individual privacy and freedom of political association and of speech, the stronger the evidence should be of a significant threat to the security of Canada. To use a shorthand phrase: the more intrusive the technique, the higher should be the threshold. When the security intelligence agency begins to take an interest in a subject through information obtained by collection techniques at the least intrusive end of the spectrum, it need have only minimal evidence on which to base its suspicion. 6. There should be a clear linkage between the nature of the information collected and the threat suspected. nformation not relevant to the threat, should not be collected. 7. Care must be taken to ensure that only accurate and reliable information is recorded and retained. 8. There should be regular reviews of all investigations to ensure that they are still warranted. f there is doubt about whether or not an investigation should be continued, that doubt should be resolved in favor of the individual and the investigation should be terminated. 9. Where an investigation reveals nothing relevant to the threat suspected, all records should be destroyed within a reasonable time following the termination of the investigation.

36 The nspector General must apply his own judgment as to whether or not, in the circumstances, a particular investigation was justified as "strictly necessary" or not. Having the benefit of hindsight, it will presumably be a somewhat easier task to decide after the fact whether or not the Service has overreached itself. n performing his responsibilities, therefore, the nspector General should consider not only whether or not the investigation was, in fact, "strictly necessary" but whether or not it was reasonable for the CSS to have embarked upon it in the first place. n doing so he must always keep in mind that CSS must play a"proactive as opposed to "reactive" role in performing its advance-warning function.. Where it is finally determined that a particular investigation was not "strictly necessary", the records of the investigation should be destroyed. 2. n cases where the nspector General determines that a particular investigation was not "strictly necessary", but that it was reasonable for the CSS to have embarked upon it, the information gathered should still be destroyed. However, in that situation, it could be said that the process established by the CSS has worked properly, and its powers have been exercised reasonably. The Service should not be unduly criticized for having properly undertaken something that turned out to be not "strictly necessary" only with the benefit of hindsight. On the other.hand, where the review body determines not only that an investigation was not "strictly necessary", but also that it should never have been commenced, there has been either a defect in the process itself of an error in judgment. n these circumstances the service is more at fault and there may be a need for changes in its operational policy.

37 E. CONCLUSON n conclusion, it is hoped that the above analysis of the "strictly necessary" restriction, or standard, though in some respects preliminary to a wider treatment of the section 2 mandate, will show why it is necessary to take that restriction seriously and apply it in a deliberate way. n the nspector General's view, if the standard is to fulfill the purposes for which it was designed, it must be constantly applied in a conscious and conspicuous fashion.

38 NÎ^iCANA DA L7^Ï ÎÎ'

39 DATE DUE tarr nne=n-- GAYLOFD PRNTED N U.S.A.

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