The Intelligence Commissioner's lock and key

Or, understanding the role of a Canadian experiment in oversight

The office of Intelligence Commissioner (IC) was established in 2019 as part of a suite of sweeping changes to the conduct of review and oversight of the Canadian national security and intelligence system. Unlike the National Security and Intelligence Review Committee of Parliamentarians (NSICOP) and the National Security and Intelligence Review Agency (NSIRA), the IC is not review body, considering issues in retrospect, but serves an oversight function, meaning that it is part of a decision-making chain for a discrete set of contemplated activities by the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment (CSE). Its mandate, it is fair to say, is complex, and it is the least well-known of the entities established to keep a watch on the watchers.

The IC has published annual reports since its inception in 2019. The most recent, for 2025, was just released. It is the meatiest to date, signalling, I think, a growing maturation of the IC’s work. ^[1]

What is the oversight function of the Intelligence Commissioner? The task is to approve (or reject) Ministerial authorizations issued for certain activities by CSE and CSIS. The activities in question are those that may impact on Canadians’ rights and privacy. For CSE, they comprise foreign intelligence collection (CSE is not allowed to target Canadians, but some intelligence on Canadians may unintentionally be acquired) and cybersecurity. For CSIS, they cover some data mining activities and also CSIS operations that would otherwise constitute offences under Canadian law.

The IC function can be thought of as a quasi-judicial process, an alternative to a Court warrant process. To fulfil the role the Intelligence Commissioner must be a retired (supernumerary) justice of a superior court. The current IC, The Honourable Simon Noel, is a retired federal court justice with a lot of experience of national security issues. ^[2] He is supported by a small staff, helping provide legal expertise.

Without the IC’s approval of a Ministerial authorization, the authorization itself is not valid and the agency in question cannot proceed with its intended activities. It’s sometimes called a “dual-key” system. So it’s a powerful role, with a lot of responsibility.

When its creation was being contemplated prior to legislation (Bill C-59), there were doubts about the role. ^[3] Would an unelected IC usurp some of the powers of a Minister and reduce ministerial accountability? Would it just be a rubber stamp? If not just a rubber stamp, would it introduce a layer of bureaucratic complexity and delay for time-sensitive intelligence missions?

Or would it actually improve decision-making and ensure that Ministers (in this case the Minister of National Defence for CSE and the Minister of Public Safety for CSIS) were kept properly informed about operational plans and put on notice that they had to take their Ministerial accountability function seriously because it was going to be put under scrutiny? Would the IC help tighten lawfulness culture at CSE and CSIS?

All good questions that will always be put to the test in the work of the IC. But the evidence to date is positive. The IC is not a rubber stamp. It works to tight deadlines to ensure missions are not delayed. Its willingness to push back, not just through its decisions but by way of engaging in a dialogue with CSE and CSIS on the nature of their operational rationales, appears to have strengthened Ministerial accountability and agency lawfulness. ^[4]

I find it of particular note that the IC is determined to ensure that CSIS and CSE take full account of its intelligence collection activities when these might impact on what are called Canadian “fundamental institutions.” ^[5] Identifying fundamental institutions is not established in law but is a matter of history and long-noted sensitivities going back to the ‘red scare’ days of the RCMP security service. Fundamental institutions are defined to include religious institutions, academia, trade unions, government and political institutions and the media. They are not “no-go” areas for intelligence collection, but areas where greater care needs to be exercised.

What is the value of the IC annual report? First, it’s an excellent primer on the role and powers of the Office. Second, it offers a sense of the guardrails that are put around some of the most sensitive and impactful intelligence operations, to limit their harm to Canadians’ rights. However complicated and specialised the role of the IC might appear, however legalistic the IC function and its measure of “reasonableness” might seem, the annual report is a useful exercise in transparency. It’s a hedge against complacency on the part of our intelligence agencies, and against conspiracy theories that might take root in public. It keeps Minister’s (and the CSIS director) on their toes over accountability.

Confession. I was a bit of a skeptic before the IC began its work. I now see it as of great value. It avoids some of the challenges that beset the relationship between the other review bodies and their subjects—especially as it has a light touch when it comes to demanding access to records, because the records it needs to see are those used by Ministers, or in some cases the CSIS director, to provide their authorizations. It doesn’t need to engage in a resource intensive hunt deeper than that. It doesn’t need a large staff. It’s not in the business of gumming up stuff, just making sure that decision -makers have got it right. It is secretive, but no more than necessary.

It’s a bonus that the Intelligence Commissioner understands that he needs to describe the Office’s work to the public and explain why it matters. The explanations go beyond anything required by the law that established the IC.

We will never get to see an actual Ministerial authorization for sensitive intelligence operations, barring some terrible leak. But the IC annual reports are an exercise in reasonable and purposeful transparency.

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^[1] Office of the Intelligence Commissioner, Annual Report 2025, https://www.canada.ca/en/intelligence-commissioner/annualreport.html

^[2] Office of the Intelligence Commissioner, Annual Report 2025, biography of The Honourable Simon Noel, at p. 19, https://www.canada.ca/en/intelligence-commissioner/annualreport.html

^[3] Bill C-59, “An Act Respecting National Security,” Part 2 established the Office of the Intelligence Commissioner: https://www.parl.ca/DocumentViewer/en/42-1/bill/C-59/third-reading

^[4] See “Role of the IC remarks in strengthening oversight,” pp. 13-17, Office of the Intelligence Commissioner, Annual Report 2025, https://www.canada.ca/en/intelligence-commissioner/annualreport.html

^[5] Ibid, p. 15