The Review Environment

House of Commons Subcommittee and Special Senate Committee recommendations on the Anti-terrorism Act

In its Final Report presented to the House of Commons on March 27, 2007, the Subcommittee of the House of Commons reviewing the omnibus Anti-terrorism Act made a number of recommendations concerning CSEC and my office, dealing particularly with the legal ambiguities in the provisions allowing for ministerial authorizations. Since the Anti-terrorism Act received Royal Assent in December 2001, my predecessors and I have faced a persistent dilemma arising from the amendments this Act introduced to the National Defence Act. Particularly troublesome has been the lack of agreement between my office and CSEC concerning the legal advice provided to CSEC by the Department of Justice. At issue is the interpretation given to the provisions relating to ministerial authorizations.

The Subcommittee's Final Report urged government counsel and me to resolve the issues concerning ministerial authorizations. As well, the Subcommittee requested that the Government's response to the Final Report indicate, to the extent possible, what the issues of disagreement are and how they have been resolved. Failing this, the Subcommittee encouraged me to provide these details in my 2007-2008 Annual Report.

The Government noted that legislative amendments would be brought forward "in due course". One year later, there appears to have been a lack of progress.

The Government issued its response on July 18, 2007. It noted that "CSE is working with Department of Justice officials to address these issues, with a view to bringing forward proposed legislative amendments in due course."[2] One year later, there appears to have been a lack of progress. In the meantime, I wish to respond to the Subcommittee's request and to describe two of my principal recommendations relating to ministerial authorizations.

Proposed amendments to the National Defence Act

The provision relating to ministerial authorizations issued for the sole purpose of obtaining foreign intelligence reads as follows:

Ministerial authorization

273.65 (1) The Minister may, for the sole purpose of obtaining foreign intelligence, authorize the Communications Security Establishment in writing to intercept private communications in relation to an activity or class of activities specified in the authorization.

Conditions for authorization

(2) The Minister may only issue an authorization under subsection (1) if satisfied that

(a)  the interception will be directed at foreign entities located outside Canada;

(b)  the information to be obtained could not reasonably be obtained by other means;

(c)   the expected foreign intelligence value of the information that would be derived from the interception justifies it; and

(d)  satisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.

[…]

My first principal recommendation concerns the term activity or class of activities as it relates to CSEC and to the Commissioner. My predecessors and I have long held the view that a plain reading of the National Defence Act supports the interpretation that the interception authorized by the Minister is that of a private communication in relation to an activity or class of activities which is targeted or the object of inquiry, and not to a method of collection as contended by CSEC. Therefore, an important amendment would be to clarify the meaning of the term activity or class of activities.

My second principal recommendation is to define the terms intercept and interception, or to provide a reference to the existing definition of intercept in the Criminal Code. At present, these terms are not defined in the National Defence Act. However, they have both legal and operational significance for CSEC.

In the absence of definitions that are universally understood and consistently applied, it is difficult for me to interpret CSEC's legislated authority and to review how it has been applied.

The Special Senate Committee on the Anti-terrorism Act also made recommendations relating to ministerial authorizations.  Notably, the Committee recommended "that subsections 273.65(2) and (4) of the National Defence Act be amended to clarify whether the facts and opinions, which are necessary to satisfy the Minister of National Defence that all of the preconditions for issuing a written authorization to intercept private communications have been met, should be based on reasonable belief or reasonable suspicion".[3]  Clarifying in law the standard to be used remains an issue of interest to my office, and I continue to support making such an amendment to the National Defence Act.

In addition, I have made other recommendations to officials at CSEC and at the Department of Justice for amendments that I think would be worthwhile to enact.

In response to another recommendation of the House of Commons' Subcommittee, the Government indicated that it did not intend to modify the National Defence Act to specify that my office should review interception activities for compliance with the Canadian Charter of Rights and Freedoms and the Privacy Act. As I pointed out in last year's Annual Report, my office's review methodology has always included an examination of compliance with all relevant laws, including the Charter and the Privacy Act.

The Subcommittee's Final Report also recommended that the Government proceed with legislation to establish a National Security Committee of Parliamentarians responsible for the review of national security matters, and that this Committee be called upon to conduct a further comprehensive review of the Anti-terrorism Act after a fixed period. The Government responded that it has not determined if this is the best way to proceed. However, it went on to note that it "will propose an approach to national security review that will meet the basic objectives set out in the second report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and is considering options for an enhanced role for Parliamentarians as a key part of these proposals for an improved national security review framework."[4] As I commented in my report last year, I concur with my predecessor's position that welcomes "the prospect of more active parliamentary review of national security activities," while also noting "challenges such as the composition of the committee and its access to classified information and documents."[5]

Iacobucci Internal Inquiry and the Major Commission of Inquiry

The Honourable Frank Iacobucci is in the process of conducting an internal inquiry into the actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin. He is to determine, amongst other matters, whether the detention or any mistreatment of these individuals in Syria or Egypt resulted, directly or indirectly, from actions of Canadian officials, particularly in relation to the sharing of information with foreign countries and, if so, whether those actions were deficient in the circumstances.

The Honourable John Major is conducting an inquiry into the investigation of the bombing of Air India Flight 182. In particular, he is to determine whether any changes in practice or legislation are required to prevent the recurrence of similar problems of cooperation between the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP) in the investigation of terrorism offences, and to recommend how government should go about establishing a reliable and workable relationship between security intelligence and law enforcement agencies regarding the use of intelligence as evidence in a criminal trial.

I have an interest in the sharing of information about Canadians, particularly when that information is to be shared outside Canada. This is an area that my office continues to examine. In this context, the outcomes of the Iacobucci and Major Commissions may have an impact on security and intelligence agencies, as well as review agencies, including my office.

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[2] Response of the Government of Canada to the Final Report of the House of Commons Standing Committee on Public Safety and National Security Subcommittee on the review of the Anti-terrorism Act, p. 20.

[3] 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, recommendation 18, p.78.

[4] Supra, note 2 at p. 25.

[5] Communications Security Establishment Commissioner, Annual Report 2006–2007, p. 8.