Commissioner's Message

I was honoured to be re-appointed last October for two more years as Commissioner. My re-appointment came in the midst of government initiatives for exploring options to strengthen the accountability of federal government agencies and departments that carry out national security activities.

These government efforts aim to reassure Canadians that the activities of these organizations to protect against terrorism and cyber attacks – including any additional powers 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 the Civilian Review and Complaints Commission for the RCMP. It is the role of existing review bodies both to encourage transparency and, where information must be kept secret, to ensure that effective, comprehensive review is conducted to bridge the information gap in public debate. We are instruments of accountability for our respective national security organizations and instrumental in helping to build public trust. To this end, I continue to disclose statistics, and encourage the Communications Security Establishment (CSE) to do so, to better inform public discussion and enhance public trust.

While my role as an external, independent reviewer focuses on CSE, a bill before Parliament proposes a committee of parliamentarians on national security and intelligence that would view security activities through a wide-angle lens. I welcome the greater involvement of parliamentarians, who would be cleared to receive secret information, in the overall accountability framework for national security activities. In my presentation to the House of Commons committee examining this bill, I outlined my concerns about avoiding duplication by defining roles clearly, and noted that review bodies should be mandated in the law to conduct reviews jointly where there is overlap, for example, when CSE works with the Canadian Security Intelligence Service. I look forward to working with the committee of parliamentarians when it becomes a reality.

The government also held nation-wide public consultations on national security. This allowed me to offer my perspective on topics that I have raised before, including the proposed committee of parliamentarians, the importance of collaboration among review bodies, and how they would work with the committee of parliamentarians. I have also commented on ministerial authorizations for CSE, and disagree with calls for CSE to be subject to judicial warrants where the unintentional or incidental interception of private communications is concerned. Drawing on my decades of experience as a judge, that has now been informed by more than three years of review of CSE's activities, I reiterated a proposal to re-inforce the Minister's accountability for CSE. Enhanced privacy protection could be accomplished for ministerial authorizations if the CSE Commissioner assessed whether the authorizations meet the conditions set out in the National Defence Act before the Minister signs them, instead of after. In this way, “judicial eyes” would carry out independent, impartial and advance assessment of CSE's request for an authorization through scrutiny by the CSE Commissioner who must be a supernumerary or retired judge of a superior court and be knowledgeable about the issues pertaining to ministerial authorizations and privacy protections.

During my appearance before the House of Commons Standing Committee on National Defence in March, I highlighted four key issues that have my attention, two of which I have already referred to above. A third issue is the long overdue amendments to Part V.1 of the National Defence Act. We are at a juncture where clarity of the legislation that mandates CSE and sets out what it can and cannot do is critical because it implicates the privacy of Canadians. It is also critical to allowing parliamentarians and the public to know exactly what authorities and limitations CSE is operating under and to be reassured that mechanisms are in place to ensure powers are not abused, and if they are, that they will be brought to light and dealt with. The fourth strategic issue is the need to re-examine what information is able to be disclosed to the public in an effort to promote transparency. Transparency has been a cornerstone of my approach as Commissioner. There have been significant strides in this regard in the United Kingdom and in the United States. It is time to do likewise in Canada.

Progress on these broader issues will strengthen the capacity to carry out my primary mandate of reviewing CSE activities and will also help create a more comprehensive and effective framework for accountability, by holding to account those agencies and departments carrying out national security activities that are not yet subject to review.

As I move through my fourth year reviewing CSE, I am mindful more than ever of the importance of remaining abreast of operational and technological developments at CSE and of external developments affecting CSE, where the threat environment and technology are constantly evolving, as is the legal landscape. My review program in this next year will continue to focus on the adequacy of CSE measures to protect privacy, the role of metadata, and the sharing of information between CSE and its partners, both domestically and internationally. In the coming year as well, I look forward to meeting with my counterparts from the United States, the United Kingdom, Australia and New Zealand for discussions about what we might learn from each other's experiences in review and oversight, and how we might address accountability for intelligence sharing among the agencies of our respective countries, in order to enhance public trust.

At the formal event last September marking the office's 20th anniversary year, the Minister of National Defence, who is responsible to Parliament for CSE, expressed appreciation for the independent reviews and recommendations he receives from the CSE Commissioner and the importance of this work in supporting his accountability for CSE. I look forward to continuing to serve in this critical role of reviewing the activities of CSE, to determine whether they comply with the law, ensuring there are robust safeguards to protect the privacy of Canadians, and contributing to the overall accountability of national security activities.