The Review Environment
Proposed amendments to the National Defence Act
Ensuring the integrity of CSEC's activities and the review process
In last year's report I once again repeated my concern over ambiguities in Part V.I of the National Defence Act (NDA) with regard to CSEC's foreign intelligence activities under ministerial authorization. I recommended a number of amendments, including one to clarify the term activity or class of activities. I also recommended that a definition of the terms intercept and interception be inserted into the Act. I have shared with government officials these and other proposals for amendments to the NDA that I believe worthwhile to enact.
Ministerial authorizations — Did you know?
A ministerial authorization is a written authorization provided by the Minister of National Defence which sets out conditions CSEC must meet so as not to be in contravention of the Criminal Code if, in the process of conducting its foreign intelligence collection or information technology security activities, it incidentally intercepts private communications of Canadians. Ministerial authorizations may be approved or renewed for a period not exceeding one year.
Applying a qualified opinion
At the end of the 2008–2009 reporting period, I continue to apply the interim solution put in place by my predecessors: that is, to review CSEC's foreign intelligence collection activities under ministerial authorizations on the basis of the NDA as it is interpreted by Justice Canada. However, in some important respects, I disagree with that interpretation - as have both my predecessors.
In April 2006, my immediate predecessor noted in his last report as CSE Commissioner that "my one regret will be if I leave this position without a resolution of the legal interpretation issues that have bedevilled this office since December 2001." In my 2007–2008 report, I noted the Government had indicated that legislative amendments would be brought forward "in due course". This has yet to occur. I want to emphasize, however, that the length of time that has passed without producing amended legislation puts at risk the integrity of the review process.
Observations of the Auditor General
I am pleased to see that the Auditor General has commented on this important matter. In a report released on March 31, 2009, she recognized that the implications of the CSE Commissioner's qualified opinion of CSEC's lawfulness, due to ambiguities in CSEC's legislation, "are serious" (Section 1.14 of the 2009 Status Report of the Auditor General of Canada).
One issue that remained unresolved in 2008–2009, stemming from Justice Dennis O'Connor's report concerning a new review mechanism for the Royal Canadian Mounted Police's (RCMP) national security activities, is whether there is a need for integrated review of integrated operations among enforcement and intelligence agencies. Justice O'Connor's recommendations included "statutory gateways" to support integrated review. While cooperation among review bodies must be conducted in a manner that respects security requirements, including the Security of Information Act, I find no obstacles, legal or otherwise, to such cooperation, if required. Moreover, I can, and do, review CSEC activities conducted under part (c) of its mandate — which involve requests for assistance to CSEC from the Canadian Security Intelligence Service (CSIS) and the RCMP — to ensure these activities are in compliance with the law.
The O'Connor inquiry included the examination of information sharing between agencies from different countries. This theme has been discussed by Canadian and international scholars. At the annual conference of the Canadian Association of Security and Intelligence Studies (CASIS), held in October 2008, reference was made to an "accountability gap", concerning an absence of cooperation between review bodies of different countries to review information sharing agreements among their respective intelligence agencies. This is a sensitive area but one that is of great interest to me, particularly as it relates to the potential sharing of personal information about Canadians. Within my own jurisdiction, in the coming year, I will be conducting a review of CSEC's activities in this area.
The Government of Canada has called for increased parliamentary involvement in the review of security and intelligence activities. Traditionally, a role for parliamentarians has been clearly established through the mechanism of Parliamentary committees: in the case of my office, it is the Standing Committee on National Defence, to which my public annual report is referred. Since the creation of the CSE Commissioner's office in 1996, the Commissioner has been invited to appear before this committee to discuss his activities and findings and to answer parliamentarians' questions quite infrequently.
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