The Review Environment

A number of key issues helped shape the environment in which this office carried out its work over the past year. Some of these have been described and commented on by my predecessors in past Annual Reports. Below, I draw attention to some themes that have not been mentioned before, as well as some new developments in ongoing issues.

Legal interpretations

Since the omnibus Anti-Terrorism Act was proclaimed in December 2001, the persons who have occupied the position of CSE Commissioner have faced a persistent dilemma arising from the amendments this Act introduced to the National Defence Act. Particularly troublesome has been the Commissioner's duty to review the activities of CSE conducted under ministerial authorizations issued for the sole purpose of obtaining foreign intelligence, given the lack of agreement on the interpretation of key provisions of the Act.

On the one hand, my predecessors and I have recognized the importance of CSE's work, and the benefit the Government of Canada derives from the foreign intelligence CSE provides, particularly during a time when the threat of global terrorism continues unabated, and the safety of our soldiers in Afghanistan remains at risk.

On the other hand, during our respective terms as Commissioner, each of us has been unequivocal in the position that the legal interpretation and advice regarding ministerial authorizations provided to CSE by the Department of Justice is not supported by a simple reading of the appropriate provisions of Part V.1 of the National Defence Act, and each of us so advised the Minister of National Defence of the day. In addition, my immediate predecessor, the Right Honourable Antonio Lamer and I both made our positions known to officials at the Office of the Attorney General of Canada.

When I am asked to consider whether an activity is lawful, I must first determine what the law states in respect of that activity. The relevant Act, then, is the yardstick by which the lawfulness of the activity is measured. The difficulty arises, in instances such as this, when there is a fundamental difference of opinion about what the Act states.

The legislation lacks clarity and it ought to be amended.

I do not question the role of the Department of Justice in the drafting of legislation, nor do I view my role as Commissioner as arbiter of statutory interpretation. However, as I have informed the Minister of National Defence and the Attorney General of Canada, the legislation lacks clarity and it ought to be amended, a view I share with both my predecessors.

This matter has been under deliberation for some time, and I hope the government will make the required amendments at the earliest opportunity. I am confident that this will not be too onerous a task because other countries have successfully adopted and are applying legislation to meet similar requirements.

Legislation lagging behind technological advances

As time goes on, there is an ever-widening knowledge gap between the general public and evolving technologies. In a number of respects, Canada's laws have also not kept pace with technological advances. We need a more imaginative approach. Today, criminal and terrorist elements are masters of these complex technologies and, unlike democratic institutions, are unimpeded by legal constraints. Those involved in the legislative process need to avoid laws that are driven by the technology of the day, which will in short order be superseded by new developments. Instead, we must ensure our laws have a broad enough scope, and are so structured — be it by providing for regulations or otherwise — that they can accommodate new technologies, and continue to protect both our privacy and security.

Three-year review of the Anti-Terrorism Act

The Anti-Terrorism Act amended the Official Secrets Act and the National Defence Act, among other legislation. The amendments to the National Defence Act included a legislative basis for CSE and the CSE Commissioner.

The Anti-Terrorism Act required a review of its provisions and operation within three years of receiving royal assent, to be carried out by a designated or specially established committee of the Senate or the House of Commons, or of both chambers. A Subcommittee of the House of Commons Standing Committee on Public Safety and National Security was established for this purpose in autumn 2004. At the same time, the Senate established a Special Committee to carry out a comprehensive review of the Act. As described in the 2006-2007 Annual Report, my predecessor appeared before the Senate Special Committee on June 13, 2005, and two days later before the House of Commons Subcommittee. The Senate Special Committee reported on February 22, 2007, and the House Subcommittee reported on March 27, 2007.

Senate Special Committee recommendations

The Committee drew comfort from the fact that this office is required to review the lawfulness of CSE's activities.

The Senate Special Committee made several recommendations concerning CSE as well as this office. As regards CSE, the Committee focussed primarily on ministerial authorizations, stating that it accepted the explanations as to why CSE needs to intercept private communications when undertaking its foreign intelligence and information technology security activities. It also accepted Commissioner Lamer's explanation that ministerial authorizations were the proper instrument to use for intercepting private communications, rather than prior judicial authorization, because warrants from Canadian courts have no jurisdiction outside Canada.[1] The Committee drew comfort from the fact that this office is required to review the lawfulness of CSE's activities, including the interception of private communications under ministerial authorizations. However, it remained concerned, as was Commissioner Lamer, that the standard required to satisfy the Minister that all necessary preconditions to intercepting private communications have been met is unclear. Accordingly, the Committee recommended that subsections 273.65(2) and (4) of the National Defence Act be amended to clarify whether these preconditions should be based on reasonable belief or reasonable suspicion.[2] This has been an issue of interest to my office, and a clarification would be welcome.

Because the Committee wished to ensure that intercepted information is disposed of if it has been determined to be non-essential or when it is no longer essential, it recommended that CSE develop information retention and disposal policies, containing specific timeframes for the disposal of intercepted information, and that it make these policies publicly available.[3]

In the interests of accountability and transparency, the Committee also recommended that the Minister of National Defence or the CSE be required to report annually to Parliament on the number of ministerial authorizations issued during the year, the number still in force by the end of the year, and the general purpose for which each authorization was issued (i.e., to obtain foreign intelligence or to protect computer systems or networks).[4]

The Anti-Terrorism Act also amended the Official Secrets Act, and renamed it the Security of Information Act, known as SOIA. SOIA establishes a process that persons permanently bound to secrecy must follow if they wish to claim a public interest defence for divulging classified information. The Commissioner may receive classified information as part of the process (see Annex A). However, the Security of Information Act does not describe what should be done once the Commissioner receives that information.[5] The Committee recommended that the Government specify the procedure to be followed in such cases.[6] I should point out that my office does have internal policies and procedures in place to fill the gap that the Committee identified.

Lastly, the Committee discussed the oversight and review of Canada's national security and anti-terrorism framework. The Committee mentioned that this office is "generally perceived to be an effective oversight mechanism."[7] The Committee recommended that a standing Senate committee be established to monitor and periodically report on Canada's anti-terrorism legislation and national security framework on an ongoing basis. In addition, the Committee called for a comprehensive parliamentary review of the provisions and operation of the Anti-Terrorism Act every five years.

House of Commons Subcommittee recommendations

My office's review methodology always includes an examination of compliance with the Charter and the Privacy Act.

The House Subcommittee's Final Report on its review of the Anti-Terrorism Act also addressed the issue of ministerial authorizations. In particular, I was pleased to note that the Subcommittee drew attention to the remarks of my predecessor in his 2006-2007 Annual Report about the legal ambiguities and uncertainties in the provisions allowing for ministerial authorizations, and the disagreement regarding interpretation of these provisions between this office and the Department of Justice. Without making a specific recommendation in this regard, the Subcommittee urged government counsel and me to resolve these issues as expeditiously as possible. As well, the Subcommittee requested that the Government's response to the Final Report indicate what the issues of disagreement are and how they have been resolved, to the extent possible. Failing this, the Subcommittee believes I should provide these details in my 2007-2008 Annual Report.[8] I intend to revisit this recommendation as the time for that report approaches.

The Subcommittee also supported a recommendation by the Privacy Commissioner that subsection 273.65(8) of the National Defence Act be amended to require the CSE Commissioner to review the private communication interception activities carried out under ministerial authorization to ensure they comply with the requirements of the Canadian Charter of Rights and Freedoms and the Privacy Act, as well as with the authorization itself. This position was reinforced with an additional recommendation that section 273.66 of the National Defence Act be amended to require the CSE only to undertake activities consistent with the Canadian Charter of Rights and Freedoms and the Privacy Act, in addition to the restraints on the exercise of its mandate already set out in that section.[9] I should point out that my office's review methodology always includes an examination of compliance with the Charter and the Privacy Act.

With respect to the issue of review and oversight, the Subcommittee recommended that Bill C-81 from the 38^th Parliament, the proposed National Security Committee of Parliamentarians Act, or a variation of it, be introduced in Parliament at the earliest opportunity. The Subcommittee further recommended that the mandate of the proposed committee include undertaking compliance audits of departments and agencies, such as CSIS, CSE, and national security elements of the RCMP, in relation to the provisions of the Anti-Terrorism Act.[10] In last year's Annual Report, my predecessor welcomed the prospect of more active parliamentary review of national security activities, but also noted challenges such as the composition of the committee and its access to classified information and documents. I concur with that position in general, and intend to offer specific comments once a bill is introduced.

Finally, the Subcommittee recommended that there be another comprehensive review of the provisions and operation of the Anti-Terrorism Act, to begin no later than December 31, 2010, and to be completed no later than December 31, 2011. It noted that the proposed committee of parliamentarians would be well-equipped to carry out this review.[11]

The O'Connor Commission of Inquiry

The Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar was established February 5, 2004. It was mandated to investigate and report on the actions of Canadian officials in relation to Maher Arar (Factual Inquiry) as well as to recommend an arm's-length review mechanism for the activities of the RCMP with respect to national security (Policy Review). The Honourable Dennis O'Connor was appointed Commissioner of the Inquiry. He released his Policy Review report on December 12, 2006.

In order to provide integrated review of integrated national security activities, Commissioner O'Connor recommended that statutory gateways be enacted linking the proposed Independent Complaints and National Security Review Agency for the RCMP, the Security Intelligence Review Committee and the Office of the CSE Commissioner to provide for exchange of information, referral of investigations, conduct of joint investigations, and coordination and preparation of reports. [12] I welcome this proposal, although to date the absence of gateways has never been an operational impediment.

I was pleased to note the following observation from Justice O'Connor's report: "I am not recommending that SIRC's mandate be expanded to include the CSE, as I understand that the Office of the CSE Commissioner functions very well and I see no reason to interfere with that operation."[13] I was also pleased to see that my office was recognized for the creation of the Review Agencies Forum in 2006-2007.[14] The Forum is described further on in this report.

I do have reservations, however, regarding Justice O'Connor's recommendation to establish an Integrated National Security Review Coordinating Committee.[15] I am concerned that introducing such a coordinating committee by way of statute, and amendments to related legislation, may create an unnecessary and counter-productive level of bureaucracy between independent review agencies and Parliament.

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[1] Special Senate Committee on the Anti-Terrorism Act, Fundamental Justice in Extraordinary Times: Main Report of the Special Senate Committee on the Anti-Terrorism Act, February 2007, p. 77.

[2] Ibid., Recommendation 18, p. 78.

[3] Ibid., Recommendation 19, p. 79.

[4] Ibid., Recommendation 20, p. 79.

[5] To date, I have not received any information under the Security of Information Act.

[6] Supra, footnote 1, Recommendation 26, p. 94.

[7] Supra, footnote 1, p.116.

[8] Subcommittee on the Review of the Anti-Terrorism Act, Rights, Limits, Security: A Comprehensive Review of the Anti-terrorism Act and Related Issues. Final Report of the Standing Committee on Public Safety and National Security, March 2007, p. 56.

[9] Ibid., Recommendations 44 and 45, pp. 55-56.

[10] Ibid., Recommendations 58 and 59, pp. 84-86.

[11] Ibid., pp. 83-85.

[12] Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review Mechanism for the RCMP's National Security Activities (Ottawa: Public Works and Government Services Canada, 2006), p. 578.

[13] Ibid., Recommendation 11, p. 580.

[14] Ibid., p. 282.

[15] Ibid., Recommendation 12, p. 591.