Mr. Forcese, Mr. Roach, Mr. Kapoor and Ms. Austin[386] pointed out that SCISA fails to implement a key recommendation of the report of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, which had brought to light the serious consequences that can arise when not enough information is shared.[387] In fact, as Mr. Roach and Mr. Forcese noted in their brief:

The Air India commission recognized this, and urged that the CSIS Act “should be amended to require CSIS to report information that may be used in an investigation or prosecution of an offence either to the relevant policing or prosecutorial authorities or to the National Security Advisor.”

The government ignored this recommendation — and despite the occasional puzzling government claims to the contrary, Bill C-51 did not honour it. Instead, Bill C-51 responded to legitimate concerns about siloed information, so evident in the Air India investigation, by throwing wide open the barn doors on information-sharing but in such a complex and unnuanced way that the only certain consequence will be less privacy for Canadians.[388]

Mr. Kapoor, who served as counsel to the Air India commission, told the Committee that “[t]he infrastructure problems and the lack of coordination that we saw in Air India have to a large extent been ameliorated by changes in the way in which the RCMP and [CSIS] deal with each other on a regular basis.”[389] Mr. Forcese explained the reason why CSIS was reluctant to share information with the RCMP:

That has to do with what is known as “intelligence to evidence”. CSIS is concerned that if it shares information with the RCMP, that sensitive information will be disclosable in court because of the scope of our Criminal Code and charter disclosure rules. It has nothing to do with this law. It has to do with the way we've structured this intelligence-to-evidence conundrum.

That is the reason the Air India commission recommended that there be a proviso putting in place a system for CSIS to disclose to a third party — they proposed a national security adviser — who would decide whether that information should be prioritized for intelligence purposes or for evidentiary purposes in a criminal trial. CSIS would not be making the decision at the end of the day. Someone outside CSIS would ensure that if there was a need for use in a criminal trial, it would be available.[390]

Mr. Roach and Mr. Forcese made a clear recommendation in this regard: “Implement Recommendation 10 of the Air India inquiry to establish legislated rules in the CSIS Act requiring CSIS to ‘report information that may be used in an investigation or prosecution of an offence either to the relevant policing or prosecutorial authorities or to the National Security Advisor.’”[391] Mr. Mia of the CMLA also told the Committee that “we maybe need to look at new legislation ... and some requirement for the agencies to work together.”[392]

In light of the evidence, the Committee recommends:

Recommendation 14

That the Government of Canada implement recommendation 10 made by the Commission of Inquiry into the Air India tragedy by amending the Canadian Security Intelligence Service Act to require the Canadian Security Intelligence Service to report information that may be used in an investigation or prosecution of an offence either to the relevant policing or prosecutorial authorities or to the national security advisor.