The last year has been marked by vigorous debate about the activities of the Communications Security Establishment (CSE) and of my office in reviewing those activities. Fuelled by continuing unauthorized disclosures of documents from Edward Snowden and legislative proposals in reaction to the murder of two Canadian soldiers on Canadian soil, an important part of the discussion has been the question of control over intelligence and security agencies. Canadians deserve reassurance that the activities of these agencies – including any additional authorities they may be granted – do not unreasonably infringe on the privacy of Canadians. At the core of this debate is my mandate, as well as the mandates of my review colleagues at the Security Intelligence Review Committee and at the Civilian Review and Complaints Commission for the RCMP.
In this charged environment, I need to maintain perspective. In my role as CSE Commissioner, I draw on my many years as a judge to examine facts dispassionately, to ask questions objectively and to view through the lens of the law instead of emotion. But I remain keenly aware that the work of CSE sparks powerful reactions when Canadians feel that their privacy could be violated and when the necessary shroud of secrecy distorts their perception of what CSE does – and therefore also of what my office does.
I continue to be concerned about public discussion that draws conclusions or forms opinions based on partial information. Without full context, which cannot be revealed to those outside the security fence, partial information can be misleading and misinterpreted. The nature of its mandate compels CSE to operate largely in secret. But my office has full access to CSE, granted by the Inquiries Act, which allows me and my staff to look deep inside the organization to know and understand what is going on. The role of my office is to represent the public interest in CSE's accountability, but in a way that does not compromise the important work that CSE does, under legislation, to protect Canada's national interests, and that Canadians expect it to do. This is what legislators intended.
Parliamentarians could not, however, have been able to predict how technology was going to reshape society. The Internet and communications technologies have blurred international borders and shifted social boundaries. This context and the current threat environment require cooperation among Canada's intelligence and security agencies. Indeed, many of the reviews my office conducted this year reflect the theme of cooperation, whether between CSE and the Canadian Security Intelligence Service or other government institutions, whether among CSE and its counterparts in Australia, New Zealand, the United Kingdom and the United States, or whether among intelligence review bodies.
With the government and Canadians searching for the best way for intelligence and security agencies to work together, while at the same time ensuring adequate controls and adequate protection of the privacy of Canadians, some commentators take issue with the increased authorities proposed in Bill C-51, the Anti-terrorism Act, 2015. As for the potential effect of this legislation on CSE, we cannot know at this time precisely how its measures will affect the work of CSE.
There is a need to ensure that operational requirements do not eclipse the privacy protection of Canadians, and this can be counter-balanced by strengthening review. As I wrote to the House of Commons committee examining Bill C-51 in March 2015, existing legislative mandates provide for a limited amount of cooperation among the review bodies. However, an explicit authority for the review bodies to cooperate and share operational information would strengthen review capacity and effectiveness, which is that much more critical in the context of increasing cooperation and sharing of information among and with intelligence and security agencies.
The issue of cooperation among review bodies is a long-standing one. In fact, in his 2006 Arar inquiry report, Justice Dennis O'Connor recommended that statutory gateways be enacted to achieve four goals: exchange of information, referral of investigations, joint investigations and coordination in the preparations of reports. My predecessor and I have already engaged in the first of these goals, with our referrals of information to the Security Intelligence Review Committee, and have begun to act on the last one – all under existing authorities.
Throughout the past year, CSE has dealt with my office in a forthright manner. Its transparency with me is a testament to the seriousness and confidence with which CSE approaches its legislated mandate.
Transparency continues to be an important element of my approach, which is important to maintain public trust. Part of my role is to inform Parliament and Canadians about CSE's activities, and I believe it is important to support my findings with as much explanation as possible, within the restrictions of the Security of Information Act. As an independent and external body, my office can challenge, and has challenged, CSE to justify why certain information needs to be considered classified. Indeed, last year I included statistics related to unintentionally intercepted private communications collected through CSE's foreign signals intelligence activities; this year's report contains more statistics. I see these as important steps in helping to demystify the work of CSE and contributing to better-informed public discussion.
I would like to express my appreciation to John Forster, whose leadership of CSE ended in January 2015. Mr. Forster was open and candid with me when there were potentially contentious issues to be discussed. As I welcome the new Chief of CSE, Greta Bossenmaier, I look forward to continuing a frank and professional relationship with her. And I will continue to demonstrate that spirit of openness in my reporting to Canadians on CSE activities.
Finally, in one of my reviews this year I point to a section of Part V.1 of the National Defence Act that needs to be amended. This adds to the calls by all my predecessors to amend Part V.1 to eliminate ambiguities. One must remember that Part V.1 of the National Defence Act was drafted and enacted quickly in 2001, following the events of September 11. Given the circumstances and the clear threat to security that existed at the time, Parliament had no choice but to act quickly. Amendments would clarify the law and are not, in my considered opinion, controversial. I am disappointed in the missed opportunities to address this significant issue.
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