Note for Remarks to the Special Senate Committee on the Three Year Review of the Anti-Terrorism Act, 2005

By the Rt. Hon. Antonio Lamer,
Communications Security Establishment Commissioner
13 June, 2005

Chair, Vice-chair and Committee members.

It is a pleasure for me to be here today to participate in the work of this Special Committee reviewing the Anti-Terrorism Act. I am accompanied today by Joanne Weeks, my Executive Director, and my in-house legal counsel Colette D'Avignon.

The omnibus Anti-Terrorism Act that you are examining introduced an amendment to the National Defence Act. This amendment established in law the mandate and activities of the Communications Security Establishment as well as that of the Office of the Communications Security Establishment Commissioner, the position that I occupy. Prior to this, the CSE Commissioner had been created, in 1996, by Order-in-Council pursuant to Part II of the Inquiries Act. The legislation continued the Commissioner's powers under the Inquiries Act and gave him further duties under the Security of Information Act.

Let me state at the outset that review is a fundamental component of ensuring that the intrusive powers granted to certain organizations, that must of necessity operate in secret, are used as Parliament intended.

I believe that review agencies, such as mine, strive to make an important contribution to the security and intelligence community. I have observed that a popular approach to security and privacy, these days, is to present them almost as mutually exclusive principles – as if it were a matter, in the first instance, of assigning precedence to one over the other. In my opinion, this is a simplistic approach. The issue involves, on the one hand, the democratic rights and freedoms of the individual, privacy being one of them, and, on the other, society's collective right to security. Both are essential values of an open and democratic society, such as our own, and they must co-exist. The trick is to find the appropriate balance in particular circumstances.

The issue of competing interests arises when society is under threat. Then, a decision must be made about the extent to which individual democratic rights must yield in favour of the collective security of the country as a whole. This decision establishes the appropriate balance between individual and collective rights, and it is made by legislators, and through public discourse.

In 2001, Parliament made that decision with the passage of Bill C-36, the omnibus Anti-Terrorism Act. Given the circumstances, and under the clear threat to collective security that existed at the time, Parliament acted quickly, but not rashly. It based its decisions on the best information available, and on all the advice from the public and policy makers that timing permitted.

In its wisdom, Parliament also determined that the balance established by the Act ought to be reviewed more fulsomely three years after its passage. It is in this context that I appear before you today.

The law you are examining has been in force for almost four years. While it is not my place, nor is it my intention, to comment on the other parts of the Anti-Terrorism Act, I can comment on the National Defence Act amendment resulting from that omnibus bill four years ago. I can say without reservation that it was essential in all its aspects.

This amendment gave CSE new powers to intercept private communications, with a special authorization from the Minister of National Defence. It is important to note, however, that the legislators of the day set clear conditions on that power. One of my duties is to review the private communications intercepted by CSE under Ministerial authorizations and to report to the Minister on the lawfulness of those interceptions. I will return to this topic in greater detail later.

Now, however, I would like to turn to my general mandate.

I review CSE's activities "to ensure that they are in compliance with the law" and that CSE protects the privacy of Canadians. When discharging this aspect of my mandate, I make every effort to ensure that I do so in a manner that does not impede CSE's operations. I also investigate complaints, and I inform the Minister and the Attorney General of Canada of any activity of CSE that I believe to be unlawful. To date, complaints have been resolved informally, and neither I nor my predecessor has had to make any report of unlawful activity to the Attorney General.

How do I go about reviewing CSE's activities?

Under my authority and direction, my staff employs many of the standard practices used in reviewing an organization. I approve a three-year workplan that is revised as appropriate. I always give priority to those areas or programmes of CSE that may implicate the privacy of Canadians. Through my Inquiries Act powers, my staff has access to all premises, documents, files and personnel at CSE. They conduct thorough file and document reviews, interview personnel and perform what I might describe as spot checks, which may include sitting with CSE analysts as they perform electronic searches, and asking them questions. This approach may also include accessing databases to ensure that information has been collected lawfully, and that the privacy of Canadians is protected, as required by law.

On completion of a review, I provide a classified report to the Minister and include any recommendations that I determine to be appropriate.

Let me focus now on my review of CSE's activities conducted under Ministerial authorizations that I referred to a few minutes ago. Legislation requires me to review the activities under each authorization and report to the Minister on an annual basis.

On May 19, 2005, the Minister tabled my Annual Report to Parliament. In that report, I observed that for a jurist, who is accustomed to dealing with warrants issued by a judge, a Ministerial authorization is a strange sort of creature. However, one must keep in mind that when CSE collects information under a Ministerial authorization, it does so, according to legislation, as a complementary subset of its main foreign intelligence collection mandate.

A Ministerial authorization is necessary in those instances where the foreign intelligence collection activity poses a risk of intercepting private communications, always targeting, I emphasize, a foreign entity outside Canada, where a warrant issued by a Canadian court has no jurisdiction.

Under the Criminal Code, any communication that touches Canada is defined as a private communication, including those where the foreign end is the target of the interception. A Ministerial authorization is a unique solution to an equally unique set of circumstances. This could occur when the communications of a foreign entity being targeted by CSE lead into, or flow out of, Canada. With a Ministerial authorization in place, CSE may retain and use such communications, but only if they meet the criteria established in the Act.

The Ministerial authorization provision of the legislation also provides for an exclusion to Part VI of the Criminal Code. This means that Part VI of the Criminal Code does not apply in relation to CSE's interception of a communication under a Ministerial authorization, or to the communication itself, and therefore CSE's interception and retention of that private communication is not a criminal offence. My duty, in this regard, is to examine those private communications intercepted and retained by CSE, to ensure that they were authorized by the Minister, and are therefore lawful, and that they were essential to the international affairs, defence and security of Canada.

In my exchanges with the Minister, I have expressed to him my view of my duties, particularly those respecting my review of activities conducted by CSE under Ministerial authorizations. It is an area that I continue to assess and interpret with great care, as I am mindful of the importance of the work CSE performs on behalf of the Government of Canada. I am equally mindful of the importance of providing assurance that CSE discharges its responsibilities in a manner that ensures that the basic rights of our democratic society, including the rule of law, are protected.

Thank you for the opportunity of appearing before you today. I wish you well in your deliberations.

I would be pleased to answer your questions.