First-Year Review

Activities

My first tasks following my appointment revolved around establishing and staffing my office. With the support of officials at the Privy Council Office and the Department of National Defence, my office was soon centrally located in downtown Ottawa. However, modifications were required to upgrade the premises to meet the standard required for handling and storing classified material. By September, my office was established and fully operational.

At CSE headquarters two offices were also made available. This arrangement facilitated my and my staff's ability to obtain and examine classified and sensitive information without having to introduce complex and cumbersome procedures to transfer documents to my office downtown.

As I launched my review function, I was cognizant that I was not charting new territory; review mechanisms have been enshrined in legislation and active within sectors of the intelligence community in Canada and abroad for years. I was able to benefit from the experiences of these review bodies.

For example, both the Inspector General of CSIS and the Security Intelligence Review Committee (SIRC) came into being following the creation of CSIS and pursuant to the Canadian Security Intelligence Service Act in 1984. I met with the current Inspector General and the Chair of SIRC, who were generous with their time. I was also pleased to have the opportunity to meet and discuss review mandates with the Australian Inspector General of Intelligence and Security, during his visit to Canada in September.

An extensive series of meetings occupied my time and that of my staff during the autumn months. There were detailed discussions at CSE regarding its mandate and operations and at Leitrim, Ontario, on the Canadian Forces Supplementary Radio System. There were also discussions with the Director of CSIS and his officials, and with the Senior Adviser and Coordinator of Security and Intelligence, Privy Council Office, and his officials, whose information allowed me to gain an appreciation of the broader aspects of the community.

I had an opportunity to meet with the Auditor General of Canada and the Privacy Commissioner to discuss their respective reports. In addition, the Deputy Minister of Justice, and his officials provided valuable information regarding the role Justice plays in the security and intelligence community in general, and at CSE in particular.

There are obviously limitations to what I am able to report about CSE and its operations. It functions in a highly complex environment and must keep abreast of the rapid pace of changing technology. However, my staff and I had unfettered access, and we were given all the information and documentation we requested. I benefitted from a broad overview of all CSE activities, some of which I later examined in greater detail.

During this initial period of review, I focussed my attention on the control and accountability measures currently in place at CSE. In doing so I drew considerable value from the discussion of these measures in the report of the Auditor General. Specifically, I concur with the Auditor General's assessment of the important legal function exercised by the Department of Justice. Legal counsel assigned to CSE from Justice are members of CSE's senior management team and an integral part of the operational decision-making process. They are fully cleared for, and have access to, all information. On a continuing basis, they provide advice on the legality of activities under consideration and of existing operations, to determine whether they are in accordance with the law.

As is the case with most federal departments and agencies, CSE is also subject to external review. Its activities must withstand the independent scrutiny of the courts, the Canadian Human Rights Commission, the Privacy Commissioner, the Information Commissioner, the Commissioner of Official Languages and, of course, the Auditor General of Canada. As noted in the Auditor General's report, however, these review bodies can bring to bear only their specific mandates in carrying out their work.

Control and accountability at CSE are equally evident at the ministerial level, since the Minister of National Defence is answerable in Parliament for all CSE activities. The Minister must approve capital spending and major spending recommendations made to Treasury Board. The Minister also approves key policy initiatives and is responsible for CSE issues in Cabinet.

Two deputy ministers, the Security and Intelligence Coordinator in the Privy Council Office and the Deputy Minister of National Defence, are responsible for ensuring that the Minister is fully informed of CSE's activities. The Security and Intelligence Coordinator is accountable for CSE's policy and operations, and the Deputy Minister of National Defence is accountable for administrative matters. CSE responds to foreign intelligence needs approved by Cabinet and to specific departmental requests or event-driven intelligence needs of the government.

Findings

Based on the results of my own review and analysis, I am of the opinion that CSE has acted lawfully in the performance of its mandated activities during the period under review. I am also satisfied that CSE has not targeted Canadian citizens or permanent residents. In this regard, my opinion has been reinforced by the reports of the Privacy Commissioner and the Auditor General of Canada, referred to earlier.

Paragraph (c) of the Order in Council appointing me CSE Commissioner authorizes me to submit a report containing classified information to the Minister of National Defence any time that I consider it advisable. In March 1997, I submitted a report to the Minister, bringing to his attention certain procedures that, in my opinion, required some review and refinement. The issues I raised were resolved to the satisfaction of all parties. Unlawful activity on the part of CSE was not the subject of this report.

A topic of continuing discussion is the issue of enabling legislation for CSE. An early reference to this issue appeared in the form of a recommendation in the Report of the Special Parliamentary Committee on the Review of the CSIS Act, which was tabled in September 1990. Subsequently, the matter was raised on a number of occasions, most recently by the Privacy Commissioner and the Auditor General.

There is no doubt that CSE occupies a unique position within the structure of the government of Canada, and not only because of its mandate. It does not have a legislative framework, nor does its name appear in the schedules of the Financial Administration Act. Yet, in my opinion, a number of policy issues should be examined or revisited before any decision is taken to begin legislative drafting. These include the scope and structure of a legislative framework, as well as limitations and related policy issues; control and accountability issues; and the scope and structure of enshrined review mechanisms.

Despite recent calls for legislation for CSE, I do not intend to express any further opinions on this topic until I have had time to study the matter further. However, I cannot help but note the remarkable window of opportunity these calls present given the new and complex challenges in the security and intelligence landscape, and the rapid pace of technological change, both of which go to the heart of CSE's mandate.

Limitations

Under the terms and conditions of the Order in Council appointing me Commissioner, I am precluded from reviewing issues for which other avenues of redress are established by statute, and I am able to review only those issues that relate directly to the mandate of CSE. This does not seem unreasonable to me given the focus of my mandate, and the fact that my office was never intended to be a court of last resort. Also, as I indicated when I was named Commissioner, I do not intend to review incidents that predate my appointment.

Despite the clarity of my mandate, one limitation may prove problematic in the longer term. While I am authorized to review any allegation concerning certain activities of CSE, I cannot inform individual complainants of the fact of my review or my findings. This may lead to dashed expectations, given the purpose of my office. However, some comfort should be drawn from the general assurance I can provide in this report of the lawfulness of CSE's activities.