Commissioner's Message

In the past year, legislation to deal with terrorism by granting new powers to security and intelligence agencies has raised questions about whether adequate oversight is in place. Stirring the debate have been the outrages of the terrorist group calling itself the Islamic State and the violent attacks of its followers, who include extremists in Canada and Canadian foreign fighters. As a backdrop, in exercising my duty as Commissioner, I informed the Minister of National Defence and the Attorney General of Canada of a Communications Security Establishment (CSE) metadata activity that I believed was not in compliance with the law. Such a finding was a first in the office's history. This finding was announced when my previous annual report was tabled in Parliament — six months later than usual because of the federal election call. I was nonetheless encouraged by the subsequent increased transparency of CSE activities.

The Office of the CSE Commissioner has been helping to ensure CSE complies with the law, including protecting the privacy of Canadians, for two decades and will have celebrated its 20th anniversary on June 19, 2016. As I reflect on my experience during my term as Commissioner, which is set to end in October 2016, this annual report offers an opportunity to recognize significant developments and some of the office's key accomplishments over the past 20 years. The office should be proud of the impact that it has had on the protection of the privacy of Canadians, on supporting the Minister in his accountability for and control of CSE, and on instilling public confidence that CSE is rigorously reviewed to determine whether its activities comply with the law and that it takes adequate measures to protect the privacy of Canadians. Indeed, as the Honourable Justice Dennis O'Connor wrote in his 2006 report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, the office “functions very well and I see no reason to interfere with that operation.”

While the office can boast some major achievements over its 20 years, important work lays ahead. The new government made commitments to increase transparency, to strengthen accountability of security and intelligence agencies, and to ensure a better balance of collective security with rights and freedoms, which most assuredly includes satisfactory measures to protect the privacy of Canadians. To this end, I sent a letter to Mr. David McGuinty, M.P. — to whom the Prime Minister assigned a leadership role in a proposed national security committee of parliamentarians — and copied the letter to the ministers of National Defence and Public Safety, and to the Government House Leader, to provide observations and comments based on my experience as CSE Commissioner.

Canada's model of expert review of security and intelligence agencies is effective. It involves an independent review body specific to the agency under review at arm's length from government. These review bodies have powers that guarantee full access to the agencies they review, including to all personnel. Dedicated employees with many years of experience have resulted in an accumulated, in-depth knowledge of the operationally sensitive, and often technically and legally complex, nature of the agencies' activities. I know that my office has developed rigorous methodologies to enable comprehensive, robust review. Review bodies are also seasoned in the delicate task of informing the public about their work to the extent possible, while protecting sensitive information.

Much as I appreciate the model of review we have developed in Canada, change is necessary as the context evolves along with technology and security threats. Clarifying the National Defence Act, as recommended by Commissioners for more than 10 years, would support the government's commitments to strengthen CSE's accountability and transparency. Amendments to the Act could also provide the Commissioner, who is a retired judge of a superior court, with new functions to support the Minister in his accountability for, and control of, CSE; for example, the Commissioner could provide the Minister an independent expert assessment of proposed ministerial authorizations, whether the conditions for authorization set out in the Act are met, and concomitant privacy protections. This approach would be consistent with international models, such as reforms proceeding in the United Kingdom.

The legal and privacy concerns of cooperation and intelligence sharing among security and intelligence agencies present another issue, specifically the question of cooperation among review bodies. To a certain extent, Canadian review bodies can work collaboratively under existing law. However, as I have stated previously, legislation should be amended to explicitly authorize review bodies to exchange information, conduct joint investigations and prepare coordinated reports, and to require security and intelligence agencies to cooperate with the review bodies.

I welcome the government's commitment to establish a security-cleared committee of parliamentarians focused on national security. Together with expert review bodies, such a committee would provide a comprehensive framework for accountability of security and intelligence activities, and could contribute to enhancing public trust. The respective roles, however, must be clearly defined to avoid confusion, duplication of effort and wasting of resources. My office may require additional resources to work with the new parliamentary committee and to support the conduct of joint reviews.

Finally, a word about transparency — a cornerstone of my approach as Commissioner. Transparency is essential to demystify the work of CSE, to contribute to a better-informed public discussion, to enhance accountability, and to the office's ultimate objective of maintaining public confidence in the important work CSE performs. As such, I have continued to challenge CSE to make public as much information as possible, within the restrictions of the Security of Information Act, and to carefully consider whether certain information needs to remain classified.

In the past year, I welcomed the opportunity to appear twice before the Senate Standing Committee on National Security and Defence to explain my office's activities and my findings. As the government pursues its overall security agenda, I hope to further contribute to the development of proposals that will strengthen both the accountability for CSE and public confidence.