The Review Environment

Several developments during the year, some of them new and some of them continuing, have the potential to shape the security and intelligence sector in general, as well as the roles and responsibilities of review bodies such as my office. I have monitored these developments closely and seized the opportunity to contribute to them as appropriate.

Three-year review of the Anti-Terrorism Act

The omnibus Anti-Terrorism Act resulted in key amendments to several existing Acts, including amendments to the National Defence Act that provided the legislative basis for CSE as well as the CSE Commissioner. The Anti-Terrorism Act required a review of its provisions and operation within three years of receiving Royal Assent, and the Special Senate Committee on the Anti-Terrorism Act was created for this purpose in December 2004.

I appeared before the Special Senate Committee on 13 June 2005, as well as the House of Commons Sub-Committee on Public Safety and National Security two days later, on 15 June. On both occasions, I set out my views on the legislation, based on the experience of this office since its enactment. In my remarks, I made it very clear that the legislation itself is absolutely essential. However, I noted also that fine-tuning and clarification of some of its provisions — particularly those relating to ministerial authorizations to intercept private communications for the purpose of obtaining foreign intelligence[3] — would help eliminate ambiguities and ensure a common understanding of the operational application of these provisions. In addition to my appearances, I wrote to the Chair of the Sub-Committee to provide my views on certain recommendations made by other witnesses that would affect my office.

Upon the dissolution of Parliament in November 2005, the Special Senate Committee on the Anti-Terrorism Act was also dissolved without having issued its report. The new Parliament was not yet in session when my reporting period ended on 31 March 2006, but I will monitor future developments in this area with keen interest.

"Whistle-blower" legislation

The Public Servants Disclosure Protection Act (the so-called "whistle-blower" legislation) received Royal Assent in November 2005. The Act establishes procedures for the disclosure of wrongdoings in the public sector and provides for the protection of persons who disclose the wrongdoings. Although my office will be subject to this Act, the Communications Security Establishment is excluded from the definition of "public sector" and thus from its general application. However, the Act provides that excluded organizations, such as CSE, must establish similar procedures, specific to the organization concerned.

The Act has yet to come into effect, and I understand that Bill C-2 (Federal Accountability Act) tabled by the new government may change some of the provisions of the "whistle-blower" legislation. Nevertheless, it is probable that CSE will be required to establish procedures for the disclosure of wrongdoings, including the protection of persons who disclose them — with a possible review role for the CSE Commissioner. I am quite prepared to take on responsibilities in this regard if called upon to do so.

Bills that died on the order paper

Two proposed pieces of legislation with the potential to influence the environment within which my office carries out its work died on the order paper when Parliament was dissolved in November 2005. As of the end of this reporting period, the new government had not yet announced whether either initiative will be pursued.

Bill C-74 (Modernization of Investigative Techniques Act) received first reading in the House of Commons in November 2005. The Bill would require telecommunications service providers to put in place and maintain capabilities that facilitate the lawful interception of information transmitted by telecommunications, and to provide basic information about their subscribers to specified authorities.

The proposed legislation would not affect CSE's mandate in relation to foreign intelligence or its mandate to protect electronic information and information infrastructures. It could, however, influence the extent of the technical and operational assistance CSE provides to federal law enforcement and security agencies in the performance of their lawful duties.

Bill C-81 (An Act to establish a National Security Committee of Parliamentarians) also received first reading in the House of Commons in November 2005. The mandate of the proposed committee would be to review the legislative, regulatory, policy and administrative framework for national security, and the activities of federal departments and agencies relating to national security. It is not intended, however, to duplicate the work of existing review bodies.

I would welcome the prospect of Parliament playing a more active role in security and intelligence matters, including scrutiny of the work of review bodies such as my office. However, I also recognize some challenges in this regard. These include, for example, the composition of the committee and its access to classified information and documents.

The Arar Commission

The Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, chaired by Mr. Justice Dennis O'Connor, was established in February 2004. Among other things, the Commission is mandated to recommend a review mechanism for the activities of the Royal Canadian Mounted Police (RCMP) with respect to their national security activities. In relation to this part of its mandate, the Commission examined intelligence review models in Canada and internationally, and held public consultations. My office contributed both written and oral submissions. My basic message to the Commission was that the model already in place for reviewing Canada's security and intelligence agencies is a good one, and experience shows that it works.

The key characteristics of the model include separate review agencies, with each review agency having:

• a mandate aligned specifically to the functions and activities of the agency reviewed;
• full independence;
• broad, unfettered access to facilities, personnel and information;
• authority to review all operational activities as well as to investigate complaints; and
• the responsibility to report to the minister accountable to Parliament for the agency under review, so that accountability to Parliament is clear and uncompromised.

The strengths of the model, therefore, include appropriateness, effectiveness and accountability. Moreover, the model's flexibility means that it can be readily adapted to particular circumstances and requirements, including a mechanism uniquely suited to reviewing the RCMP's national security activities.

I look forward with interest to the Commission's report and its recommendations.

Interception of private communications by the U.S. National Security Agency

In late 2005, the United States media reported that following the events of 11 September 2001, President George W. Bush ordered the National Security Agency (NSA), in the interests of national security, to intercept private communications of Americans without a court warrant. In doing so, according to press reports, the President bypassed the process established for such circumstances under the Foreign Intelligence Surveillance Act of 1978.

Understandably, questions, commentary and speculation began to appear in the Canadian media about CSE's role and activities in the current threat environment. As a result, I made my own extensive inquiries that included discussions and communications with the Chief, CSE and drew on the considerable body of work carried out by my office in recent years. It is not my intention to comment in any way on the lawfulness of the NSA's activities, as they are well beyond my purview. However, I have decided to take the opportunity afforded me by this Annual Report to highlight the regime in place in Canada.

Part V.1 of the National Defence Act allows CSE to collect communications, even if they enter or exit Canada, provided that the target for the collection is a foreign entity located outside of Canada. In other words, the target cannot be a Canadian or located geographically in Canada. This kind of collection, where the end not targeted is in Canada, must be authorized by the Minister of National Defence in advance of the collection. The NDA sets out conditions that must be met to the Minister's satisfaction in order for a ministerial authorization to be issued. It was Parliament's view that a ministerial authorization, entrenched in legislation, provides a better approach to establishing the required authority than a court warrant, as the latter would have no application to foreign targets located outside Canada.

The regime in place for CSE to acquire communications of foreign entities, even if a communication originates in or enters Canada (and is thus a private communication[4]), is based in legislation. Further, the NDA requires me, as the CSE Commissioner, to review CSE activities to ensure that they comply with the law. It directs me specifically to review activities carried out under a ministerial authorization to ensure they were authorized, and to report annually to the Minister on my review. A summary of my review work completed in the year ended 31 March 2006 follows.

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[3] In my 2004–2005 Annual Report, I outlined my views in some detail on how I have interpreted and will continue to discharge my mandate in respect of foreign intelligence ministerial authorizations (pp. 7–10).

[4] The Criminal Code definition of a private communication includes any communication that originates or terminates in Canada made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended.