The Evolving Role of the Commissioner

Since I started as Commissioner in 1996, the highly complex environment in which CSE works has changed dramatically. So has the work of my Office and the expectations placed upon it.

One aspect of the change results from the technology-rich environment within which CSE works ¯ and the technology involved has been advancing at an accelerating pace throughout this time. Another key element relates to changes in the intelligence environment that derive from evolving political, social and economic realities. These have led to new threats to Canada's security, defence and national interests and changes to the government's intelligence priorities. To address these challenges, CSE has expanded its role in the collection, analysis and reporting of information and intelligence. My staff and I have had to learn about the complex technologies involved and to stay on top of the rapid changes taking place in order to carry out the Commissioner's review role effectively and efficiently.

Throughout this period of dynamic change in technology, in the intelligence environment, and in CSE's activities, I have been guided by the principle that Canadians deserve the assurance that CSE, which must of necessity conduct most of its business in secret, does so in compliance with the laws of Canada. Providing this assurance has been my responsibility, and I have sought to fulfil it by maintaining the breadth, depth and credibility of my Office's review work, with a particular focus on those matters that could put the privacy of Canadians at risk.

The Commissioner's role, as it had developed under mandates set out in the June 1996 and June 1999 Orders in Council appointing me Commissioner, was confirmed and extended by Parliament in the Anti-Terrorism Act of December 2001. The most significant extension of my role arises from provisions that allow the Minister of National Defence to authorize CSE's interception of the private communications of Canadians in specific circumstances and subject to several conditions set out in the legislation.1 Section 183 of the Criminal Code defines private communications as

This new power of CSE to intercept private communications when authorized by the Minister is a significant development, bringing with it obvious risks to the privacy of Canadians. These risks are recognized in the legislation, which requires, among other things, that the Minister be satisfied that CSE has satisfactory measures in place to protect the privacy of Canadians. In addition, the legislation directs the Commissioner to review activities carried out under each ministerial authorization to ensure that they are indeed authorized, and to report annually to the Minister on the review. Based on experience to date, I anticipate that this will be a substantial and challenging aspect of the Commissioner's role in the future.

A further extension to the Commissioner's role was set out in the Security of Information Act (the former Official Secrets Act). This Act prohibits people bound by secrecy from communicating or confirming "special operational information", including special operational information about CSE's activities. A person would not be found guilty of an offence, however, if that person could establish that he or she acted in the public interest. A judge can consider a "public interest defence" only if the person involved has taken a series of steps set out in the legislation before disclosing the information. These steps may include bringing concerns about CSE's activities to the Commissioner and allowing a reasonable time for the Commissioner to respond. Although I am hopeful that this role will rarely be exercised, it is potentially an important one and is likely to be demanding when a concern is brought to the Commissioner's attention.

The legislative provisions setting out the mandate of the Commissioner of the Communications Security Establishment are included in Annex A.

¹ Before December 2001, CSE would have been in violation of privacy-related provisions of both the Criminal Code and the Canadian Charter of Rights and Freedoms had it intercepted communications without the certainty that, in doing so, it would not intercept private communications.