Notes for remarks to the Standing Senate Committee on National Security and Defence

The Honourable Jean-Pierre Plouffe - Communications Security Establishment Commissioner

May 2, 2019

Check Against Delivery

Chair, honourable members, I am pleased to appear before this committee on the subject of Bill C-59. I am accompanied by Guylaine Dansereau, the Executive Director of my office, and by Gérard Normand, Special Legal Advisor.

I have been the Communications Security Establishment Commissioner for over five years, with the responsibility for reviewing the activities of the Communications Security Establishment, or CSE, to determine whether those activities complied with the law, including whether CSE protected the privacy of Canadians. My current term expires in April 2020.

During my previous appearance before the House of Commons Standing Committee on Public Safety and National Security in January 2018, I suggested a number of amendments. I do not intend to repeat them today since they are available for your perusal.

I would now like to take a moment to further elaborate on the proposed role of Intelligence Commissioner (IC). I have read the statements of all Senators during Second Reading, and some comments have led me to believe that it is important today to explain what the role of the Intelligence Commissioner will be.

My mandate will change completely from performing after the fact review of CSE's activities to performing quasi-judicial review of the conclusions reached by Ministers in issuing certain ministerial authorizations and determinations for both CSE and CSIS, concerning intelligence activities before they can be carried out. I will determine whether the respective Ministers' conclusions to authorize these activities were reasonable and if so to approve them. This is a new role in Canadian law, and an important one. To accomplish that task, I will be advised and assisted by persons having technical or specialized knowledge in the field of National Security.

In essence, the notion of reasonableness to be applied by the Intelligence Commissioner, who must be a retired judge of a superior court, is somewhat similar to the notion applied by a court of law when undertaking a judicial review, i.e. the power of a court of law to review the actions and decisions of administrative decision-makers.

This quasi-judicial review will only apply to specific instances as described in Part 2 of Bill C-59 (sections 13 to 20). This role does not, for instance, provide a veto right to the Intelligence Commissioner over ministerial authorizations.

The Intelligence Commissioner will look at the facts and evidence presented to the Ministers by the intelligence agencies (the record) based on which the authorisations were issued.

Essentially, the reviewing mandate given to the Intelligence Commissioner is to be satisfied that the Ministers' authorizations are based on conclusions that are reasonable. If satisfied that they are reasonable, the IC approves them, if not, the IC does not approve them.

I trust the latter clarification will help establish a better understanding of the proposed role of the Intelligence Commissioner.

In conclusion, I am confident that the proposed Intelligence Commissioner Act will create a robust oversight process, aimed at achieving greater transparency, better accountability and bolster public confidence.

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