On Friday, 11 December 2020, Canada’s National Security and Intelligence Review Agency (NSIRA), which provides oversight for the country’s intelligence agencies, issued its annual report for 2019. Among other things, the report is highly critical of the Canadian Security Intelligence Service’s (CSIS’s) reliance on polygraphy to screen applicants and employees, noting that the Security Intelligence Review Committee (NSIRA’s predecessor agency), “recommended in 1985 that CSIS should cease using the polygraph.”
The NSIRA report notes that “future reviews will examine the polygraph’s use outside of CSIS, and based on the information assessed, NSIRA will make a definitive determination about the legality and utility of this instrument.”
In its future assessments, NSIRA should be mindful of the late University of Toronto professor of psychology John J. Furedy’s work on lie detection. Furedy astutely likened polygraphy to the ancient Roman divination ritual of haruspicy (entrails reading).
NSIRA should also take note of former RCMP polygraph unit chief Charles Momy’s criticism of polygraph screening.
It is also worth noting, as documented in a recent post to the AntiPolygraph.org message board, that CSIS discourages applicants from researching polygraphy. A recent CSIS applicant was told:
We do conduct a polygraph exam. We advise that you do not do any research. If you’ve done some research in the past that’s ok, but if you are going to continue with the process we advise that you don’t do any research, because that could have an impact on your candidacy.
NSIRA should demand that CSIS explain the rationale for such an instruction.
For further reporting on the NSIRA report’s findings on polygraph screening, see CBC reporter Catharine Tunney’s article, “Federal government rethinking use of controversial polygraph test.”
The relevant portion of the 2019 NSIRA annual report is reproduced below (footnotes omitted, links supplied):
82. A final observation relates to the government’s use of the polygraph for screening security and intelligence employees. Commonly referred to as a lie detector test, the polygraph is a technology that measures and records several physiological indicators such as blood pressure, pulse, respiration and skin conductivity while a person responds to a number of questions. “Deceptive” answers produce physiological responses that can, so it is alleged, be differentiated from those associated with “non-deceptive” answers.
83. The TBS Standard on Security Screening, created in 2014, cites the use of the polygraph as an appropriate tool, among others, for assessing candidates seeking an Enhanced Top Secret (ETS) clearance. CSIS, in conducting security assessments for its staff, uses the results of the polygraph as a determinative element when granting ETS clearances, rather than an instructive element, to be considered as part of a series of relevant factors. If an outside candidate, employee or individual contracting with the Government of Canada is denied a security clearance that is necessary to obtain or keep federal employment or a contract, the individual can make a complaint to NSIRA pursuant to section 18 of the NSIRA Act. If NSIRA’s jurisdiction is established, the complaint would be investigated by an NSIRA member. This could include, for example, a complaint where a CSIS employee was terminated solely because of the revocation of a security clearance, and the Deputy Head of CSIS could have based the decision to revoke the clearance on the results of a polygraph test. Given the highly invasive and controversial nature of this technology, NSIRA decided to examine the use of the polygraph within our latest safeguarding review of CSIS. We sought to determine the justifications for its use, and the extent to which such determinations are reasonable and necessary.
84. Several key observations were derived from this analysis. First, this tool can have profound negative impacts on an employee’s mental health if not used appropriately. Second, CSIS was unable [sic] justify the merits of examiners — who are not medical practitioners — to ask medical-related questions of the people they examine. Third, the outcomes or consequences for polygraph exams conducted on external applicants compared with CSIS employees differed. [ Text removed – As of November 20, 2020, NSIRA and CSIS could not agree on how all of the facts of this review should be presented in an unclassified, public document]. Essentially, a successful polygraph is a determinative factor for external applicants in obtaining an ETS clearance through CSIS. Fourth, CSIS requires policy clarity for cases where employees fail the polygraph examination. Finally, CSIS did not conduct a privacy impact assessment (PIA) for the use of the polygraph, despite a PIA being required by government policy when a department or agency is dealing with “personal information.”
85. These issues raised in the CSIS context are related to a much broader consideration: namely, the extent to which the government’s overarching policy document, the Standard on Security Screening, provides adequate guidance for departments and agencies when they implement this safeguarding measure. For example, this standard requires the use of the polygraph for all ETS clearances, but it is silent on any guidance on the implementation of this requirement, including the conditions for the reasonable use of the polygraph. Rather, such key considerations are left to the discretion of specific departments and agencies.
86. The OPC has also raised concerns with TBS as to how the polygraph examination is used as an enhanced screening requirement under the 2014 Standard on Security Screening. In July 2017 correspondence, for example, the OPC noted particular concerns surrounding its effectiveness, sensitivity and privacy implications, and the potential adverse consequences associated with polygraph examinations.
87. These contemporary observations are not new. In seven consecutive annual reports, ranging from 1985–86 to 1991–92, SIRC requested that CSIS stop using the polygraph. One of the key concerns raised by successive committees were SIRC’s “grave doubts” about the use of the technology, pointing to the fact that test results could be wrong 10% of the time or more. As well, Canadian courts have refused to admit the results of a polygraph as evidence in criminal trials. The Supreme Court of Canada has found that they are unreliable and risky, and would not assist the Court in determining a person’s guilt or innocence.
88. After consideration of the foregoing, on December 12, 2019, NSIRA sent a letter to TBS seeking access to the legal advice prepared for Treasury Board on how the polygraph complies with Canadian legal requirements, as well as a summary of the evidentiary basis used to establish the requirement for using the polygraph, and any assessments of how the use of the polygraph achieves its intended goal. The TBS response failed to answer NSIRA’s questions. However, the letter did acknowledge that the next round of security policy modifications was under way.
89. When SIRC recommended in 1985 that CSIS should cease using the polygraph, it was meant to allow the government time to reach definitive conclusions about whether this technique should be employed by Canadian agencies and, if so, under what circumstances and under what rules. SIRC requested what sound government policy instruments should always require: namely, that there are consistent approaches across government; that risks are managed; and that policies exhibit public service values such as probity, prudence, equity and transparency. NSIRA has not been provided with evidence that suggests that the use of the polygraph meets all of these policy requirements. To this end, future reviews will examine the polygraph’s use outside of CSIS, and based on the information assessed, NSIRA will make a definitive determination about the legality and utility of this instrument.