Commissioner's Message

The primary purpose of this report is to inform the Minister of National Defence of my activities during the fiscal year ending March 31, 2012. I will make mention of the results of reviews I conducted into the operations of the Communications Security Establishment Canada (CSEC) during the past year, as well as review projects currently under way and those that I expect to undertake in the next few months. I will also refer to other activities that I and my office have conducted, especially those meant to keep us abreast of the latest developments in Canada and abroad in the area of review of security and intelligence agencies.

Two-thirds of the way through my three-year mandate, I am obliged to note that the public, and sometimes even so-called experts, continue, because of a lack of knowledge, to misjudge the respective roles of Canada's various intelligence agencies and, consequently, those of the various review bodies. There is a reason for this ignorance. The secret nature of the activities of intelligence organizations is such that any attempts at educating the public come up against a culture of silence that makes one keep quiet even about what is known or what could be made known. To paraphrase a well-worn expression, the fear that one might see certain trees is such that one is not allowed to describe the forest. In my opinion, it is possible, without going into details it would be inappropriate to divulge, to employ simpler and more comprehensible language and thus ensure that public debates are not held on false premises.

In my message of last year, I briefly described my own mandate and that of CSEC. This year, I shall be revisiting this in greater detail in my report.

Technology is developing at a staggering pace. CSEC's expertise in communications technology results in its providing assistance, pursuant to its mandate, to other members of Canada's security and intelligence community, particularly the Canadian Security Intelligence Service (CSIS). This year, as I pursue my efforts to inform the public through this report, I would like to better define the respective roles of CSEC and CSIS. I find that these roles are frequently misunderstood.

When acting on its own initiative, CSEC does not have the right, under its enabling legislation, to target anyone within Canada or any Canadian outside Canada. However, CSEC also has a mandate to lend assistance to such organizations as CSIS, which might, upon request, lead to an involvement with a Canadian or someone on Canadian soil. In providing such assistance, CSEC is subject to the laws governing the organization that has made the request.

Since CSIS, under its enabling legislation, is concerned with threats to the security of Canada and may conduct its investigations using methods including the interception of private communications, the invasion of the privacy of Canadians is inherent in these activities, and Parliament wanted these activities to take place only upon the securing of a judicial warrant. Accordingly, when CSIS is executing such a warrant and requests the assistance of CSEC, CSEC is in effect simply taking part in an activity already authorized by a court. It would be superfluous to require another warrant at that point. My predecessors have reviewed the assistance provided to CSIS by CSEC. This year, I undertook an in-depth review, which I will complete in the next few months, of certain activities in which CSEC acts on a request of CSIS.

Furthermore, since CSEC is only authorized to target non-Canadians outside Canada, any interception of private communications involving Canadians is as unintentional as it is unforeseeable. Therefore, Parliament has required that these activities of CSEC that could unintentionally breach the privacy of Canadians be the object, not of a warrant, but of a ministerial authorization issued by the Minister of National Defence. This ministerial authorization, however, does not amount to a blank cheque; it comes with significant requirements, some legal and others that the Minister may prescribe, to ensure that, should the privacy of a Canadian become involved, measures are in place to protect it.

Increased cooperation between CSEC and CSIS in turn requires increased cooperation between the organizations that review them. This is not easily done, as the laws governing review bodies set up highly compartmented competencies that do not encourage pooling energies and resources. Lately, I have been working on finding ways of making the reviews that my office and SIRC each undertake more complementary, to satisfy myself that no activities of CSEC and CSIS elude review. Paragraph 273.63(6) of the National Defence Act allows the Governor in Council to authorize me to "engage in any related activity." Article 54 of the Canadian Security Intelligence Service Act allows the Minister of Public Safety and Emergency Preparedness to request from Security Intelligence review Committee (SIRC) a "special report concerning any matter that relates to the performance of its duties and functions". I am of the opinion that my office and SIRC could, by virtue of these provisions, be asked to conduct a joint review or complementary reviews of certain activities involving both CSEC and CSIS. This approach would be squarely in keeping with the recommendations formulated by the Honourable Judge Dennis O'Connor, in his second report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, on the system for reviewing security and intelligence organizations in Canada.

This annual report would not be complete if I did not highlight certain major changes in the top management of CSEC and in its status.

Last January, John Adams, who had been Chief of CSEC for six years, was appointed as Senior Advisor to the Privy Council Office and as Skelton-Clark Fellow to the Queen's University School of Policy Studies. I am in a position to testify just how much he was able to develop a culture of respect for privacy within CSEC. There will, of course, always be an inevitable and necessary climate of tension between a review body and the organization being reviewed. The challenge, then, for the heads of the two organizations is to make sure this tension is business-like and productive. To my mind, this has been the case.

John Forster, a seasoned senior civil servant, assumed leadership of the CSEC on January 30, 2012. I have met with him on several occasions and I already discern in him the traits of his predecessor. I am confident that our relationship will be marked by courtesy and respect. My team and I organized an intensive information session for the new Chief in order to present him with the clearest possible picture of how I carry out my review mandate under the Act.

Incidentally, until November 16, 2011, CSEC had been under guardianship of a sort, reporting both to the Deputy Minister of National Defence for its administration and finances and to the National Security Advisor to the Prime Minister for its operations and policies. On that day, CSEC became an autonomous body in the National Defence Minister's portfolio with departmental status. Its Chief acquired the rank of Deputy Head and reports directly to the Minister.

I do not expect this change of status to have any impact on the relationship between my office and CSEC. However, I am of the view that the requirement to report to the National Security Advisor to the Prime Minister allowed a broader government perspective on national security to be applied to CSEC operations and policies, and I will be watchful whether CSEC's new autonomy results in any weakening of its accountability and compliance control framework.