Appearance before the Standing Committee on National Defence, 2010

Speaking notes of
The Honourable Robert Décary, Q. C.
Commissioner of the Communications Security Establishment

For an appearance before
The Standing Committee on National Defence

Ottawa (Ontario)
November 18, 2010

Please check against delivery

Mr Chairman, Ladies, Gentlemen, members of the Committee

I would like to thank you for giving me the opportunity to meet with you so soon after taking on this job.

Let me tell you a few things about myself. I'm sixty-six years old, a retired judge of the Federal Court of Appeal and, since June 18 of this year, Communications Security Establishment Commissioner. I am a jurist by training but my more recent experience is as an appeal judge for some twenty years.

Montrealer by birth, London educated, and now adopted by Gatineau.

I have devoted a good part of my life to public service. For two years I served as an assistant to the Honourable Mitchell Sharp, who was at the time Secretary of State for External Affairs. Then, for one year I served as Executive Assistant to Yvon Beaulne, Under-Secretary of State for Cultural Affairs. I practiced law with a firm in Montreal and returned to Ottawa as assistant director of research with the Task Force on Canadian Unity, the Pepin-Robarts Commission. I returned to private practice at an office in Hull and combined that with a career as a legal and political columnist on the editorial pages of le Devoir and La Presse as well as on numerous public affairs programs on Radio-Canada and TVA. I have authored several books and magazine articles.

Thanks to my law practice in Hull, I appeared more often than any other Québec lawyer at the time before the Supreme Court of Canada, serving for more than ten years as an agent of the Attorney General of Québec and some thirty law firms.

In March 1990, the Honourable Kim Campbell, Minister of Justice at the time, appointed me to the Federal Court of Appeal, the second highest court in Canada. I heard some two thousand sixty cases and drafted reasons in over seven hundred of them. I sat in every Canadian province and the Northwest Territories, from St John's to Vancouver, with many appearances in Montreal, Ottawa and Toronto.

There are few areas of federal law that have escaped my attention. Other than my daily bread and butter consisting of immigration, employment insurance and income tax, I had the privilege, in particular, of being the first appeal judge to rule on the status of the Official Languages Act (Canada (Attorney General) vs Viola, [1991] 1CF 373 (CA)); on the constitutional validity of the Anti-Terrorism Act (Charkaoui vs Canada (Minister of Citizenship and Immigration), 2004 FCA 421); and on the scope of the Personal Information Protection and Electronic Documents Act (Englander vs Telus Communications Inc, 2004 FCA 387).

I retired in July 2009, my sole plan at the time being to volunteer at the Olympic Games in Vancouver in February 2010. I was assigned the pleasant task of assistant to Canadian dignitaries, which enabled me to serve as a guide to Premier Jean Charest and Premier Danny Williams.

On June 18 of this year, the Honourable Peter MacKay, Minister of National Defence, appointed me Commissioner of the Communications Security Establishment (CSE). I must admit that it was with some apprehension and trepidation that I agreed to return (part time, I should specify) to public life. There was apprehension because I was asked to fill the shoes of great jurists like Antonio Lamer, Claude Bisson, Charles Gonthier and Peter Cory, and trepidation because trying to reconcile the rights of Canadians to privacy with the need to gather foreign intelligence and ensure Canada's security represents an utterly fascinating challenge.

My role, as you well know, is defined in the National Defence Act (the "Act"), generally speaking, it involves reviewing the activities of the CSE so as to ensure their compliance with the law, conducting any investigations I deem necessary in response to complaints about CSE, and informing the Minister of National Defence and the Attorney General of Canada of any CSE activities that I believe may not be in compliance with the law.

To understand my role, one must first have a clear understanding of CSE's mandate as well as its limitations. Since the Anti-Terrorism Act came into effect in December 2001, the functions of the CSE have basically been as follows (you will understand that I am reducing them to their essentials): a) gather foreign signals intelligence; b) help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada; and c) offer technical and operational assistance to federal law enforcement and security agencies (e.g. the Royal Canadian Mounted Police and the Canadian Security Intelligence Service).

Regarding the first two of these mandates, CSE's activities are subject to three legislative limitations of the utmost importance. Firstly: CSE is not authorized to conduct activities that target Canadians, wherever they might be in the world, nor can they target people here in Canada. The second limitation: since situations may arise where, in conducting these two activities, CSE may unintentionally intercept a one-end Canadian communication or obtain information about Canadians, and since such information may prove essential to the international affairs, defence or security, the Act permits this information to be used and retained, but only if measures are in place to protect the privacy of Canadians. And the third limitation: to provide a formal framework for the unintentional interception of private communications, the Act requires express authorization by the Minister of National Defence once he or she is satisfied that specific conditions provided for in the Act have been met. These are known as ministerial authorizations.

Within this context, my mandate is firstly to ensure that CSE, in its operational approach, only targets foreign entities outside Canada; secondly, to ensure that the activities conducted by CSE under ministerial authorization are those authorized by the Minister and to report about this review to the Minister; and, thirdly, to ensure that, in all the activities it undertakes, CSE puts in place and effectively applies measures to protect the privacy of Canadians.    

Regarding its third function – that of helping federal law enforcement and security agencies – CSE operates as an agent of the organization in question and its activities are subject to the limitations that govern that same organization under the laws that apply to it. Once again, my role consists in ensuring that the activities of CSE comply with the law. The job of monitoring the lawfulness of the activities of these other agencies is entrusted to other institutions, for example, the Security Intelligence Review Committee and the Commission for Public Complaints Against the RCMP.

Each year, the Commissioner submits a report to the Minister on his activities, which the Minister is then required to table in Parliament. In addition, during the year, the Commissioner presents the Minister with classified reports containing the results of reviews of CSE activities. I would like to note here that, two years ago, the Commissioner's Office became an autonomous and independent agency, with its own appropriation from Parliament.

Mr Chairman, members of the Committee,

in December 2001, when the Anti-Terrorism Act was adopted, Parliament was faced with a dilemma. Within Canada, every individual has a quasi-constitutional right with respect to his or her privacy. And every person has a constitutional right with respect to security of the person. In addition, the State has an obligation to protect each of these individual rights and to ensure the country's security as well. These rights and obligations are not easy to reconcile: what in fact would the right to privacy mean – or the right to security of the person – in a society where security was no longer taken for granted or that was no longer free and democratic? In the Anti-Terrorism Act, Parliament tried to walk a fine line; it adopted a solution it deemed just, necessary and appropriate under the circumstances so as to allow the State to ensure its security and that of Canadians while at the same time respecting the right of every Canadian to privacy. Parliament conferred on the Commissioner, which is my role now, with respect to the activities of the CSE, the mandate of ensuring that CSE fulfills the obligations imposed on it by Part V.1 of the National Defence Act, as that Act was amended by the Anti-Terrorism Act; and by all other Canadian laws, including the Charter of Rights and Freedoms. Parliament has invested the Commissioner with extraordinary powers to perform his functions. I will not hesitate, where necessary, to exercise them.

In conclusion, I hope you will allow me to praise the wonderful work being done by the members of my team, who are small in number but of the highest quality.  Competent, hard-working, conscientious, dedicated to their mission…these men and women ably facilitated my entry into the fascinating, but hugely complex, world of foreign intelligence. I am grateful also to the Chief of CSE, John Adams, who staged a series of briefings that gave me a better understanding of the role and activities of CSE. I am fully aware, however, that my learning has just begun.

I would be happy at this time to answer any questions you may have.