Notes for remarks to the House of Commons Standing Committee on Public Safety and National Security

By the Hon. Jean-Pierre Plouffe

Communications Security Establishment Commissioner

15 November 2016

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Chair, honourable members, I am pleased to appear before this committee on the subject of Bill C-22. I am accompanied by Bill Galbraith, the Executive Director of my office.

Before I make a few remarks about the bill this committee is examining, and since this is my first appearance before this committee, I will very briefly describe the role of my office.

You have my biographical note and a summary of my mandate, so I won't go over them here, but I would like to say that I have found that my decades-long experience as a judge has stood me in very good stead in more than three years as CSE Commissioner.  Being a retired or supernumerary judge of a superior court is a requirement set out in the National Defence Act, the legislation that mandates both my office and the Communications Security Establishment.

The CSE Commissioner is independent and arm's length from government. My office has its own budget granted by Parliament. I have all the powers under Part II of the Inquiries Act which gives me full access to all CSE facilities, files, systems and personnel, including the power of subpoena, should that be necessary.

The Commissioner's external, independent role, focused on CSE, assists the Minister of National Defence, who is responsible for CSE, in his accountability to Parliament, and ultimately to Canadians, for that agency.

Let me turn now to Bill C-22.

I have previously stated that a greater engagement of parliamentarians in national security accountability 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 in the review or oversight mechanisms, was put into question. Those disclosures dramatically changed the public debate.

I believe that a security-cleared committee, along with the expert review bodies such as my office and that of my colleagues at the Security Intelligence Review Committee (SIRC), who review the activities of the Canadian Security Intelligence Service, and the Civilian Review and Complaints Commission (the CRCC) for the RCMP, can provide a strong complementary and comprehensive framework for accountability of security and intelligence activities, and can enhance transparency.

I believe this committee will help re-store and enhance public trust, but it will not be without challenges. Historically, the CSE Commissioner was rarely invited to appear before parliamentary committees and the work of my office may not have received its full due.  The committee of parliamentarians may help to focus attention on the important work of the expert review bodies. My office and I look forward to working with the committee and its secretariat.

For maximum effectiveness, however, the respective roles – of the committee of parliamentarians and of the expert review bodies – must be well-defined, to avoid duplication of effort and wasting resources. In my view, this is of paramount importance.

Avoiding duplication was an obvious theme and I was pleased to see it stated in the bill, in section 9 entitled “Cooperation”.  The words are straightforward but we will have to work closely with the committee secretariat to ensure this happens in practice.  The objectives, to my mind, are to ensure comprehensive overall review and encourage as much transparency as possible.

I have some thoughts on how we might begin a productive relationship with the committee and its secretariat. Perhaps we can explore this issue during questions.

There are, however, some points that should be discussed.  I have a number of observations about various parts of the bill. 

The three-part mandate of the committee, provided for in section 8, is very broad, relating to any activity, which includes operations, as well as administrative, legislative and other matters. As written, this will be another reason why we must work closely with the committee from the outset, to ensure the roles are defined in practice, not just to avoid duplication, but to ensure complementarity.

I am not privy to the government's intentions with this broad approach. However, the combination of this three-part mandate could adversely impact the effectiveness of the secretariat's work.  The committee will have to establish its priorities.  And again, this is where the committee and the review bodies can work closely together for effective overall accountability.

What is clear is that the government wants to have review of the national security and intelligence activities of those agencies and departments not currently subject to review.

It is critical for effective review to maintain the capacity for expert review that we have now, and to develop it for those agencies and departments not currently subject to review.  This could be done by establishing another review body, or bodies, or dividing them among the existing review bodies.  The committee of parliamentarians will, I expect, turn its attention to this issue.

As I read the bill in its current form, it is clear the committee does not have the same freedom of access as my office or SIRC. 

In subsection 8(b) the committee can review “any activity” that relates to national security and intelligence “unless the appropriate Minister determines” otherwise.  This provides a potential restriction on what the committee may or may not see.

This is where I believe the complementarity between the committee and the existing review bodies comes in, with reassurance that the latter have unfettered access to the agencies they review.  The gap is the departments and agencies not yet subject to review.

There are a couple small changes I would suggest, to provide clarity.  I could provide these in writing subsequently.

Thank you for this opportunity to appear before you today.  My Executive Director and I would be pleased to answer your questions.