The Review Function

On several occasions, I have expressed the view that CSE should have its own legislation. Legislation would put the agency on a firm footing by articulating its mandate and powers and its relationships with Parliament, the Government, and the Minister of National Defence. It would seem reasonable to expect that provisions for a permanent review mechanism would also be included.

Some observers have suggested that the activities of Canada's foreign signals intelligence agency and its domestic security intelligence agency could be examined by the same review mechanism.
In defence of this idea, they cite such advantages
as economies of scale. I am not a supporter of this proposal, however, for a number of reasons.

First, the mandates of the two agencies in question are markedly different: one provides the government with information and advice on threats to national security, while the other provides
foreign signals intelligence in support of the government's foreign and defence policies. Second, the agencies report to Parliament through different ministers of the Crown, as do the bodies that now review their activities.

These are not the most compelling reasons, however.

In the three years I have spent as CSE Commissioner, I have concluded that a fundamental distinction must be made between the activities of a domestic intelligence agency and those of a foreign intelligence agency such as CSE. This distinction must also be reflected in both the ethos and the undertakings of the bodies responsible for reviewing them. The need to distinguish between the two stems directly from the unique relationship between each agency and the citizens of the country it serves.

To fulfil its mandate, a domestic intelligence agency must maintain constant contact with the citizens of the nation, through programs of varying degrees of intrusiveness, designed to collect intelligence about threats to security within its borders. The mandate of its corresponding review body must therefore be broad-based, reflecting the reality that this relationship is sensitive, ongoing, and at the core of the agency's activities.

CSE, on the other hand, has no such relationship with Canadians. It relies on a variety of sophisticated technologies to fulfil its sigint mandate. Its activities serve the interests of Canadians by collecting intelligence from outside Canada's borders in relation to the government's foreign and defence priorities. Appropriately, my review mandate relates directly to the lawfulness of CSE's activities.

I have concluded that the most important feature of any review mechanism is to provide assurance to the appropriate minister, to Parliament and, ultimately, to the public. This assurance should be based on careful examination of the activities at the heart of the agency under review. In this regard, I believe the current review arrangements, although perhaps not the ultimate review solution, serve Canadians well.