Looking Ahead

The Public Safety Act

In October 2002 the government introduced Bill C-17, the Public Safety Act, in Parliament. This bill, which replaced the earlier Bill C-55 (which in turn had replaced Bill C-42), was still under consideration as I was writing this report. Bill C-17 proposes legislative changes on a wide range of subjects, from transportation safety and immigration to biological weapons. Among the proposed changes are amendments to the National Defence Act that would confer significant new responsibilities on the Commissioner of CSE for reviewing the lawfulness and compliance with ministerial authority of activities undertaken by the Department of National Defence or the Canadian Forces to protect their computer systems and networks, and for dealing with complaints arising from such activities.

I have informed the government of my concerns regarding the role proposed for the Commissioner in this Bill and its predecessors. Those concerns centre around the difficulties I can foresee in providing meaningful assurance of lawfulness and compliance with ministerial authority. In addition, however, I believe that assuming these new and potentially complex responsibilities would raise the question of whether the Commissioner's role could be carried out effectively on a part-time basis in the future.

In the meantime I have asked my officials to undertake a preliminary assessment of the review mandate envisaged in Bill C-17 so as to identify more clearly the systems that would be involved and the size of the sample of activities that would need to be reviewed for the Commissioner to give the assurances required. This will provide my successor with better information on the nature and extent of the work involved, and the possible impacts on this Office's resource requirements, should Parliament choose to confer these new duties on the Commissioner.

Appointment of a New Commissioner

My appointment as Commissioner expires on 19 June 2003.

Paragraph 273.63 (1) of the National Defence Act provides that the Governor in Council may appoint either a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment. However, I am concerned that a supernumerary judge would face serious limitations in carrying out the full range of duties and responsibilities involved.

These limitations arise from the blurring of lines between the executive and legislative arms of government on the one hand, and the judiciary on the other, that would result from appointing a supernumerary judge. For example, a supernumerary judge would not be in a position to comment on proposed legislation ¯ as I have had occasion to do from time to time. Similarly, a supernumerary judge ought not to appear as a witness before parliamentary committees. Although I am somewhat disappointed not to have been called as a witness before parliamentary committees to discuss my annual reports, as a retired judge I would at least have been able to do so.

Regardless of the Governor in Council's decision, I wish my successor well in this fascinating and challenging assignment.

Concluding Thoughts

Finally, I would like to take this opportunity to say that serving Canada and Canadians during the past seven years has been a source of great and enduring satisfaction for me. I am convinced that through the very existence of this external review function, through the assurances that I have been able to provide and the opportunities for improvement that reviews have identified, my Office has made an important contribution to strengthening the control and accountability of CSE.

I would also like to say goodbye and to thank those I have worked with for seven years. In particular, the skill, dedication and unfailing good cheer of my staff have helped me immeasurably and have guided me through some challenging times. But I am also grateful for the respect and courtesy that CSE and other government officials have consistently extended to me and my staff. Their cooperation has made our task much easier.