Commissioner's Plouffe's letter to the Honourable David J. McGuinty, MP

April 5, 2016

The Honourable David J. McGuinty, MP
House of Commons
Ottawa, ON  K1A 0A6

Dear Mr. McGuinty:

I am writing to you in your leadership role, assigned by the Prime Minister, in the proposed statutory committee of Parliamentarians that will be responsible for reviewing security-related issues and helping to strengthen national security oversight.

In my most recent public annual report, I wrote about ensuring adequate controls over the security and intelligence agencies, including adequate protection for the privacy of Canadians. I would like to provide you with observations and comments based on my experience as Commissioner for the review of the Communications Security Establishment (CSE). I would add that, in addition to evaluating this impartially, consistent with my lengthy judicial career, I have no particular stake in this given the defined duration of my appointment.

As you are aware, the Canadian model for assisting responsible ministers in their accountability to Parliament for the security and intelligence agencies grew out of the scandals of the Royal Canadian Mounted Police (RCMP) Security Service in the 1970s. That situation resulted in legislation that established the civilian Canadian Security Intelligence Service (CSIS), with judicial and ministerial controls, as well as with detailed provisions for review and the adjudication of complaints by the Security Intelligence Review Committee (SIRC).

Subsequently, this model was the basis for establishing the Office of the CSE Commissioner, by Order-in-Council in 1996, under the Inquiries Act.

I have come to appreciate the effectiveness of this model of expert review, which entails:
being independent and arms-length from government; unfettered access, with power to compel witnesses to appear; having in-depth knowledge of the intelligence agency, accumulated over years of experience; having the expertise to understand the operationally sensitive and often technically and legally complex nature of the activities; having rigorous methodology in the review process; having sufficient analytical and research skills to enable effective, extensive and tough but fair review of the security or intelligence agency; and communications skills to inform parliamentarians and the public while protecting national security secrets and international partnerships.

I have stated that greater engagement of parliamentarians is welcome. In particular, following the disclosures by Edward Snowden of stolen classified information from the U.S. National Security Agency and its partners, including CSE, the public trust in the intelligence agencies and the review of them was put into question.

Prior to the Snowden disclosures, my predecessors were rarely called before parliamentary committees. I believe that a security-cleared parliamentary committee along with expert review bodies would provide a strong complementary and comprehensive framework for accountability of security and intelligence activities, and could also enhance public trust. However, for maximum effectiveness, the respective roles must be well-defined, to avoid duplication of effort and wasting resources.

Regardless of what form any re-structuring of review bodies may take, it will be important to maintain a capacity for expert review of different agencies and departments. As well, I have come to appreciate, from discussions with my colleagues at SIRC, the Civilian Review and Complaints Commission (CRCC) for the RCMP and with international colleagues, the uniqueness of the foreign signals intelligence and cyber-defence functions that CSE performs, compared to other security and intelligence activities based more on human intelligence collection or law enforcement. Justice O'Connor, in the 2006 report of his Royal Commission into the Arar affair, tacitly acknowledged this when he recommended independent review of the national security activities of (as they were named at the time) Citizenship and Immigration, Transport, FINTRAC, and Foreign Affairs and International Trade, which would come under the review of SIRC, while the Canada Border Services Agency would be subject to review by a newly mandated Commission for Public Complaints Against the RCMP that would also review national security activities of the RCMP. As for the CSE Commissioner's office, Justice O'Connor noted that it “functions very well and I see no reason to interfere with that operation.” He did recommend, however, that “statutory gateways” be established to allow for joint investigations by, and exchange of information between, review bodies.

On the last point above, I would like to add a brief word about cooperation between review bodies. As my predecessor and I have stated, there is much that can be, and is being, done now, under existing law. My immediate predecessor and I have forwarded six letters to SIRC over the past several years, referring questions and issues that have arisen in reviews I have conducted of CSE activities that have involved CSIS. Earlier this year, my officials briefed SIRC about the conclusions of a review of a joint CSE-CSIS activity that SIRC was beginning to review. Notwithstanding these initiatives, I believe the law should explicitly authorize review bodies to conduct joint reviews and to require the security and intelligence agencies to cooperate.

I must also note that CSE Commissioners have for well over a decade recommended amendments to the National Defence Act, to remove ambiguities in the legislation and, most recently, I recommended an amendment to provide explicit authority for CSE to collect, use, retain and disclose metadata. These amendments will help clarify the legislation and strengthen the accountability of CSE.

I have copied this letter to my colleagues at SIRC and the CRCC and to your colleagues the Minister of National Defence, the Minister of Public Safety and the Government House Leader, the latter two whose mandate letters include lead roles in the creation of a statutory committee of Parliamentarians to review national security activities.

If you have any questions, or would like to discuss any of these or related points, I would be pleased to meet with you and any others engaged in this issue.

Sincerely,
Jean-Pierre Plouffe

cc:
The Honourable Harjit S. Sajjan, PC, OMM, MSM, CD, MP, Minister of National Defence
The Honourable Ralph Goodale, PC, MP, Minister of Public Safety
The Honourable Dominic LeBlanc, PC, MP, Leader of the Government in the House of Commons
The Honourable Pierre Blais, PC, Chair of the Security Intelligence Review Committee
Mr. Ian McPhail, QC, Chair of the Civilian Review and Complaints Commission for the RCMP