Commissioner's Plouffe's letter to the Honourable Ralph Goodale, PC, MP

November 9, 2016

The Honourable Ralph Goodale, PC, MP
Minister of Public Safety
269 Laurier Avenue West
Ottawa, ON K1A 0P8

Dear Minister Goodale:

I am following with interest government consultations on national security and will be providing input to an expert consultation session being organized by Professor Kent Roach.  I also previously sent correspondence to Mr. David McGuinty  with observations about ensuring adequate controls over the security and intelligence agencies, including adequate protection for the privacy of Canadians.

The specific purpose of this letter is to respond to a recommendation made by professors Craig Forcese and Kent Roach (A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper, pp. 5-8) to legislate a judicial authorization system for the Communications Security Establishment (CSE), similar to M.P. Joyce Murray's Private Member's Bill C-622 (defeated at second reading on November 5, 2014). I do not support the approach or the recommendation by professors Forcese and Roach.

Ministerial authorizations shield CSE from the prohibition on the interception of private communications found in the Criminal Code. The Minister of National Defence (Minister) may authorize CSE to engage in foreign signals intelligence and cyber defence activities that risk the unintentional (CSE uses the term incidental) interception of private communications if he is satisfied that the conditions for authorization set out in the National Defence Act (NDA) are met (subsections 273.65(2 and 4)).

The Act requires the Commissioner to examine CSE activities under ministerial authorization to determine if the activities are those authorized. Regular reviews conducted by my office, of activities under ministerial authorization, verify that CSE is targeting foreign entities located outside Canada, not directing activities at Canadians or any person in Canada, ensuring that satisfactory measures are in place to protect the privacy of Canadians and that any private communications unintentionally intercepted that are used and retained by CSE are essential to international affairs, defence or security, as required by the NDA.

Professors Forcese and Roach correctly quote the description that the complexity of the global information infrastructure is such that it is not possible for CSE to know in advance if a foreign entity located outside Canada will communicate with a Canadian or a person in Canada. Accordingly, while CSE is targeting foreign entities located outside Canada, there may be circumstances in which unintentional interception of private communications will occur.  It is impossible for CSE to anticipate whether, when, or who may be intercepted along with their foreign targets.  It would therefore also be impossible for CSE to seek prior judicial authorization for the interception of specific private communications which cannot be known in advance.  In these circumstances, it is difficult to imagine a court approving a blanket application for CSE to intercept communications.

To address concerns raised by the professors and others regarding the ministerial authorizations and privacy protections, I recommend amending the NDA to require the CSE Commissioner to provide the Minister with an independent expert assessment of proposed ministerial authorizations and concomitant privacy protections. This function would be in addition to the Commissioner's existing review and complaints mandates.

Commissioners' reports to the Minister on reviews of past ministerial authorizations already include verification of whether the NDA conditions for authorization were met. Changing the timing of this work — so that the Commissioner provides the Minister with an assessment before the authorizations are signed — would support the Minister in his accountability and control of CSE. In this way, “judicial eyes” would carry out independent, impartial, advance oversight of CSE interception, in this case, scrutiny by the CSE Commissioner who must be a supernumerary or retired judge of a superior court. In addition to the long experience in law, the supernumerary or retired judge, as CSE Commissioner, has also acquired a thorough knowledge of the issues pertaining to ministerial authorizations and privacy protections. Introducing this process would move in the direction of proceedings in the United Kingdom under the Investigatory Powers Bill, with the creation of the position of judicial commissioner.

Should you have any questions, I would be pleased to meet with you and your colleagues to discuss proposals to strengthen Canada's national security framework.

Sincerely,

Jean-Pierre Plouffe

cc:

The Honourable Harjit S. Sajjan, PC,  MSM, CD, MP, Minister of National Defence
The Honourable Jody Wilson-Raybould, PC, MP, Minister of Justice and Attorney General
Mr. Daniel Jean, National Security Advisor to the Prime Minister
Ms. Greta Bossenmaier, Chief, CSE