Two major undertakings represented the bulk of my office's work this past fiscal year. The first revolved around testing the information in CSE's databases. The second involved research and information gathering in support of the complaints function, which has now been fully integrated into my new mandate.
During the period under review, my staff devoted considerable effort to testing CSE's signals intelligence databases. CSE analysts search these electronic files daily to identify intelligence that meets the government's foreign and defence priorities. They then process and distribute this intelligence to CSE's client departments and agencies within the government. My staff's unlimited access to these holdings, therefore, provides my office with a direct passageway into the principal product of CSE's sigint collection efforts -- and the ideal mechanism to test the lawfulness of CSE's collection activities.
Our approach to testing remains a work in progress. It is under continual development and refinement, not only as our knowledge and understanding of CSE deepen, but also in response to technological advancements, changing collection practices and evolving intelligence priorities.
Our testing is directed at determining whether CSE acts in accordance with the fundamental principles of lawfulness and privacy. In conducting our tests, we are constantly aware of a series of facts about the organization. For example:
- CSE is both a collector of foreign communications intercepts and a recipient of communications intercepts collected by Second Parties;*
- CSE does not have the authority to target the communications of Canadians;
- Canadian communications can make their way into CSE's information holdings, since absolute exclusion is technically impossible at this time;
- CSE uses the technical means at its disposal to reduce the inadvertent interception of Canadian communications;
- CSE has policies and practices to address the safeguarding and proper handling of inadvertently collected Canadian communications in accordance with the laws of Canada, including the Privacy Act, the Criminal Code and the Canadian Charter of Rights and Freedoms.
These facts about CSE have led me to establish several objectives for our testing program, including:
- to determine whether CSE targets or possesses Canadian communications;
- to review and assess CSE's adherence to policies and practices on the handling of the communications of Canadians in accordance with the laws of Canada; and
- to assess the comprehensiveness and effectiveness of the technical means used to safeguard the privacy of Canadian communications.
As a result of our testing program, my staff has regular contact with CSE employees and continuous access to the organization's information holdings. The testing function complements and verifies my office's other methods for assessing compliance issues related to lawfulness and privacy. And the very presence of my staff as they conduct our tests onsite at CSE is a visible reminder to CSE's operational staff of the legal boundaries within which they must operate.
*Australia, New Zealand, United Kingdom, United States.
The Complaints Function
Readers of my two earlier reports will recall that I expressed concern about complaints. In brief, while the 1996 Order in Council authorized me to receive complaints about CSE's mandated activities, I lacked the authority to report to individual complainants about my findings. Instead, I had to suggest to complainants that they draw their own conclusions about my findings from the contents of my annual reports.
This matter is now rectified. The Order in Council that will guide my activities from June 19, 1999 to June 19, 2002 includes a provision by which I may receive, examine and report back on a complaint laid by any individual who is a Canadian citizen or a permanent resident of Canada. I look forward to operating under these new terms of reference. Although the comprehensiveness of the work of my office will not change, I am now able to respond directly to individuals about my findings. It remains my intention, however, not to examine allegations of wrongdoing with respect to incidents that took place before my original appointment on June 19, 1996.
In anticipation of this enhancement, in August 1998, my office sought advice and embarked on a series of studies to determine the budgetary, staffing and administrative implications of an integrated complaints function. I wanted to learn as well about the best practices of others whose responsibilities include receiving and examining complaints and responding to complainants, both in Canada and abroad.
Although I have received several complaints since 1996, I have no way of knowing whether the number or nature of complaints will change with
the revised mandate. However, I do have a few objectives for the function itself. I want an approach based on sound systems and practices that can be expanded or contracted as needed, depending on the number of files involved. I want to ensure that current dispute resolution mechanisms and practices are featured. I want to avoid creating an administrative burden for CSE and my office and to keep bureaucracy and paperwork to a minimum.
When we began to examine other complaints functions, it was clear that any study would require a careful focus, since myriad examples exist.
We chose to review the policies and practices of
six other federal offices that handle complaints and investigations resulting from the actions or inactions of another agency or department of government. We also studied how complaints are handled by other jurisdictions, including the United Kingdom, Australia and New Zealand.
I am grateful to many people who gave generously of their time and experience, including officials at the offices of the Correctional Investigator, the Information Commissioner, the Official Languages Commissioner, the Privacy Commissioner, the rcmp Public Complaints Commission, and the Security Intelligence Review Committee. As a result of this effort, I expect that the transition to my new mandate will be a smooth one.
In August 1998, I testified before the Special Senate Committee on Security and Intelligence, chaired by Senator William M. Kelly. In my remarks, I described the work of my office and the options for long-term review of CSE. I was pleased with the Committee's recommendation, in its January 1999 report, that CSE should have its own Act of Parliament and that the legislation should provide for a permanent and separate review body for CSE.
Back in 1996, the Auditor General conducted an audit of the Canadian intelligence community. This past December, he issued a short follow-up report to the 1996 study. In his generally positive comments about the community's response to his report, he reiterated his view that legislation for CSE could be of value.
Shortly after the end of the 1998-99 fiscal year, CSE sponsored its first ever Law Day. The event coincided with other Law Day celebrations across the country held annually to mark the anniversary of Canada's Charter of Rights and Freedoms. I was pleased to participate in the event at CSE, where I spoke to a large gathering of employees about the role of my office in determining whether the activities of CSE are lawful. I noted that the creation of a review function for CSE grew out of Canadians' increased awareness of the rights of individuals, an awareness reflected in the Charter. The recent creation of review functions for security and intelligence agencies in similar democratic countries, such as the United Kingdom, Australia and New Zealand, suggests that our experience in Canada is not unique.
Budget and Staff
When the government established my office, it allocated an annual budget of approximately $500,000, including salaries. In addition to paying for the usual costs of running an office, I chose to hire two full-time staff and to bring in several subject-area specialists on contract. This approach allowed me to have at hand the range of expertise required to fulfil my mandate.
I can report that total spending for the three years was $1.117 million, well within the budget.
Annex B to this report provides a statement of my expenditures over the course of the first mandate.
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