Review Environment

Proposed amendments to the National Defence Act

The National Defence Act (NDA) prohibits CSEC from directing its foreign intelligence and information technology security activities at a Canadian or any person in Canada. It also requires CSEC to take measures to protect the privacy of Canadians in the use and retention of intercepted information.

However, due to the manner in which communications are transmitted, CSEC may, while conducting its mandated foreign intelligence collection or information technology security activities, unintentionally intercept communications of Canadians or persons in Canada, which constitute "private communications" as per section 183 of the Criminal Code.

Recognizing this possibility, the NDA allows the Minister of National Defence to authorize CSEC to intercept private communications. Prior to granting this authorization, however, the Minister must be satisfied that certain conditions set out in the NDA are met. There are four conditions for foreign intelligence collection ministerial authorizations (subsection 273.65(2)) and five conditions for information technology security ministerial authorizations (subsection 273.65(4)).

CSEC's activities conducted under a ministerial authorization must be undertaken in accordance with:

• relevant legislation, namely the NDA, Canadian Charter of Rights and Freedoms, Privacy Act, Criminal Code, as well as Justice Canada advice;
• requirements set out by the Minister of National Defence in the authorization or in a ministerial directive, for example, for accountability, to record and report to the Minister certain information after the expiration of the ministerial authorization; and
• CSEC policies and procedures.

Part of the Commissioner's legislated mandate is to examine CSEC's activities under ministerial authorizations to ensure they were authorized and conducted in compliance with the law. Reviews by past Commissioners have never identified an instance in which CSEC targeted the communications of a Canadian or a person in Canada.  

CSEC's foreign intelligence ministerial authorizations are broadly written and apply to methods of collecting foreign intelligence rather than to individuals. However, Commissioners have been of the view that it is not clear that the NDA supports such an approach. Commissioners have stated that amendments to the NDA are necessary to clarify ambiguities relating to foreign intelligence ministerial authorizations. Former Commissioner Gonthier also emphasized last year that "the length of time that has passed without producing amended legislation puts at risk the integrity of the review process."

Commissioner Gonthier was informed by the Minister of National Defence that clarification of ambiguities and other amendments to the NDA are a legislative priority. Pending amendments, Commissioners have continued to use the interim solution of applying a qualified opinion, that is, reviewing CSEC foreign intelligence collection activities under ministerial authorization on the basis of the NDA as it is interpreted by Justice Canada. However, past Commissioners have noted they disagree in certain important respects with that interpretation, which highlights the need for amendments to the NDA.

CSEC assistance to CSIS under part (c) of CSEC's mandate and sections 12 and 21 of the CSIS Act

National security matters are increasingly the subject of court and other public proceedings. In his October 5, 2009 decision in the matter of an application for a warrant pursuant to sections 12 and 21 of the CSIS Act, the Honourable Mr. Justice Mosley of the Federal Court authorized CSIS, with the technical assistance of CSEC, to intercept from within Canada communications pertaining to threat-related activities in which it was believed two persons would engage while travelling outside of Canada. Justice Mosley distinguished the application from a similar one heard and denied in October 2007 by the Honourable Mr. Justice Blanchard, also of the Federal Court.

In the reasons for his decision, Justice Mosley emphasized that "[i]n authorizing CSIS, with the technical assistance of CSE[C], to collect information ... intercepted in Canada, I am not authorizing CSE[C] to overstep its legislative mandate under the National Defence Act. [...] CSE[C] will not be directing its activities at Canadian citizens to acquire information for its purposes but assisting CSIS".

In 2010–2011, the Commissioner's office will conduct a review of CSEC's assistance to CSIS involving the interception in Canada of communications of Canadians located outside of Canada and subject to a warrant under sections 12 and 21 of the CSIS Act, such as those authorized by Justice Mosley's decision.

Findings and recommendations arising from the Iacobucci and O'Connor inquiries

In June 2009, the House of Commons Standing Committee on Public Safety and National Security issued a report of its review of the findings and recommendations arising from the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (Iacobucci inquiry) and the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (O'Connor inquiry). The Standing Committee urged the government to implement all of the recommendations from these inquiries.

In October 2009, the government responded to the Standing Committee's report with a commitment "…to modernize and strengthen the national security review framework". Specifically, the response stated: "[t]he Government's objective is to strengthen national security structures that are already in place..." and "[m]uch work has also been done to advance policy analysis on Canada's national security review framework " including "...providing a mechanism to facilitate inter-agency review of national security activities".

Regarding the latter point, former Commissioner Gonthier stated that there are no obstacles, legal or otherwise, to cooperation among national security review agencies. Much can be done by way of joint or parallel reviews, research or other collaborative work.

Respecting the role of parliamentarians, and in the context of the development of an enhanced national security framework, the government's response indicated that due consideration will be given to the Standing Committee's fifth recommendation: that Bill C-81, introduced in the 38^th Parliament, An Act to Establish the National Security Committee of Parliamentarians, or a variation of it, be introduced in Parliament at the earliest opportunity. Past Commissioners have raised questions about the composition of such a committee and its access to classified national security information.

The O'Connor and Iacobucci inquiries also identified a number of issues respecting Canadian security and intelligence agencies' sharing of information with foreign agencies. The government's response indicated that "[t]he cumulative result of successive commissions of inquiry, reports and lessons learned has been the refinement of policies and practices surrounding the exchange of information between foreign partners and Canada's national security and intelligence and law enforcement communities". Information sharing is an essential component of CSEC's foreign intelligence program. The Commissioner's office is currently completing a review of this activity.

In its response to the recommendations of the O'Connor and Iacobucci inquiries, the government indicated that it will continue to consider the advice of stakeholders. The Commissioner's office remains willing to discuss such matters.