Brief submitted to The House of Commons Standing Committee on Justice and Human Rights Re: Bill C-36, The Anti-terrorism Act
Brief submitted to The House of Commons Standing Committee on Justice and Human Rights Re: Bill C-36, The Anti-terrorism Act
Dealing with those Parts of Bill C-36 that pertain to The Communications Security Establishment, and The Communications Security Establishment Commissioner
November 9, 2001
by The Honourable Claude Bisson, O.C. Communications Security Establishment Commissioner
When I appeared before the Special Senate Committee on the Subject Matter of Bill C-36, I indicated at the outset that I would confine my remarks to those aspects of the Bill that refer to the mandates, duties and responsibilities of the Communications Security Establishment (CSE) and to my office. I have adopted a similar approach with this brief.
Several calls have been made in recent times to establish a statutory basis for CSE. These included the CSIS Act Parliamentary Review Committee in 1990, the Privacy Commissioner in 1996, the Auditor General's reports of 1996 and 1998. Four of my own public annual reports have also addressed this matter. While CSE has managed very well without its own statute since its creation in 1946, I believe that legislation for CSE will introduce an element of certainty that does not currently exist. There are unique challenges associated with legislating CSE. In particular, legislation must have sufficient flexibility to ensure that its provisions do not become outdated as a result of the rapid pace of change in technology as well as in the security and intelligence environments.
I believe that Bill C-36 addresses these concerns because it places the emphasis on duties and responsibilities in terms of broad principles rather than in detailed technical direction. Further, it clearly articulates CSE's obligation to take appropriate measures to protect the privacy of Canadians in carrying out its functions. I also welcome the opportunity that Bill C-36 affords by introducing legislation for my own office, and particularly the approach to review proposed by the Bill.
Recent discourse surrounding Bill C-36 has generated discussion about the most appropriate mechanism to review CSE's activities, and there are several models from which to choose. When I have been asked if it would be more appropriate for the Commissioner to report to Parliament, I have responded by stating that I will report to whomever the legislators should identify. In my opinion, the model proposed for CSE, which is similar to that currently in place, not only works, but is appropriate to the circumstance.
First, I am able to report to Parliament through the Minister of National Defence each year when my annual report is tabled. Second, I am able to report directly to the Minister on matters that involve sensitive or classified information. And thirdly, my mandate requires that I report not only to the Minister but to the Attorney General on any CSE activity that I believe is not in compliance with the law.
Given the highly secure environment in which CSE must operate, the model of a single Commissioner, supported by qualified subject-matter specialists, achieves an appropriate balance between the sensitive classified nature of the work, and the need for accountability to government and Parliament.
The Commissioner's Current Mandate and Activities
I was first appointed CSE Commissioner by Order in Council pursuant to Part II of the Inquiries Act on June 19, 1996 for a period of three years. In June 1999, I was reappointed for a further three years.
I have two principle roles:
to review the activities of CSE to determine whether they are in compliance with the laws of Canada; and,
to investigate any complaint concerning the lawfulness of CSE's activities made by any individual who is a Canadian citizen or permanent resident of Canada.
As noted previously, I submit an annual report on my activities and findings to the Minister of National Defence. The Minister tables this report in Parliament. Because of the nature of the activities I review, I also submit reports containing classified information to the Minister when I deem it appropriate to do so. To date, I have submitted 19 such reports and I make reference to them in my public report.
Part II of the Inquiries Act articulates very clearly my powers of access, investigation and examination in all matters pertaining to the activities of CSE. I am authorized to engage the services of staff, advisors and counsel that I consider necessary to assist me in the performance of my duties and functions.
How the Commissioner Reviews CSE
As I indicated in my last annual report that was tabled in Parliament in May 2001, each year my office identifies areas for review within CSE's operations where issues of lawfulness might arise, and where there are potential risks to the privacy of Canadians. In addition to my permanent staff, I engage subject-matter specialists to assist me in conducting my reviews. The several individuals on whom I can call bring a broad range of knowledge and skills to my office in, among other areas, audit, review, policy, information technology, law enforcement and operations. The common element, however, is significant expertise in the field of intelligence.
I pass along the results of my reviews to the Minister in the form of classified reports. These reports are classified because they contain sensitive information specific to CSE's operational activities, including methods, sources, targets and technological capabilities.
The review methodology adopted by my office is straight-forward, yet comprehensive. We begin by reviewing the legal authorities and instruments, such as the government's annual intelligence priorities, that govern and guide CSE's activities. We examine CSE's internal policies to determine whether they adequately reflect the legal requirements and the government's intentions. We then study CSE's specific operational guidelines and procedures. Finally, we review CSE's operational practices to determine whether the activity undertaken by CSE conforms with law and policy.
Despite the provisions of Part II of the Inquiries Act, I wish to note that at all times I have been granted unlimited access to all of CSE's papers, documents, files, records, electronic systems and databases, and to all CSE personnel that I have identified as central to the activity under review.
The Complaints Function
Under my current mandate, I am authorized to investigate complaints about the lawfulness of CSE's activities made by any individual who is a Canadian citizen or permanent resident. I have the authority to summon any party to a complaint to appear at an in-camera hearing and to give written or oral evidence under oath. To date, I have not received a complaint requiring a formal investigation.
If I believe a complaint is outside my jurisdiction, I may refer the complainant to the appropriate government agency or review body. I do not take action on a complaint I believe to be trivial, frivolous, vexatious or made in bad faith.
Comments on Specific Provisions of Bill C-36
Operational Activities under Ministerial Authorization
CSE's core mandate, as articulated in Section 273.64, and my mandate that is set down in Section 273.63, do not alter significantly the performance of the day-to-day activities of CSE or of my office. However, the provisions for CSE to undertake certain operational activities under Ministerial authorization pursuant to Section 273.65 of the Bill, and my requirement to review them are both new and significant.
Section 273.65 provides the Minister of National Defence with the power to authorize CSE to intercept private communications either for the purpose of obtaining foreign intelligence or for the protection of the government's computer systems and networks. In the case of intercepts for the purpose of collecting foreign intelligence, the Bill specifically provides that the interception must be targeted outside Canada. "Private communication" is defined in the Bill as having the same meaning as in Section 183 of the Criminal Code that states:
"private communication means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by an originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it."
Section 184 (1) of Part VI of the Criminal Code goes on to state:
"Every one who, by means of any electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years."
However, Section 273.69 of Bill C-36 provides that Part VI of the Criminal Code does not apply in respect of an interception of a private communication by CSE that is made under Ministerial authorization. In other words, this would have the effect of exempting CSE employees from contravening the Criminal Code in the performance of their duties pursuant to a Ministerial authorization involving the interception of a private communication.
While this exemption from the Criminal Code is out of the ordinary, I do not believe it is excessive in view of the circumstances under which it would be implemented. Bill C-36 sets out specific criteria that must be met before private communications can be intercepted, retained and used. Of particular interest to me are the measures that must be in place, and those additional conditions that may be imposed by the Minister, in order to protect the privacy of Canadians.
These new provisions only serve to raise the importance of the CSE Commissioner's review function. I am of the opinion that the powers and access as provided for in this legislation will enable me to continue reviewing CSE's activities, including those carried out under Ministerial authorization, to determine that they comply with the laws of Canada.
Official Secrets Act Amendments
Part 2 of Bill C-36 proposes several amendments to the Official Secrets Act. Of interest to me is the amendment at Section 15 - the "public interest defence".
The current provisions of the Official Secrets Act respecting the disclosure of classified information have long been a concern because, in order to prove that a disclosure has caused damage, the government is normally required to release more classified information, at the risk of causing further damage.
The current legislative proposal introduces a series of thresholds that must be met before a person who is "permanently bound to secrecy" under Section 8.(1) of the amendment can claim a public interest defence as justification for releasing "special operational information". The Commissioner is the final threshold in the event that a concern relates to an alleged offence that involves a member of CSE in the purported performance of that person's duties and functions.
In my opinion, this proposal is a sensible approach to addressing a difficult, long-standing issue. However, I do not believe its impact in practice can be fully assessed at this time and I intend to monitor its implementation.
Other Matters of Interest
Appointment of the Commissioner
Subsection 273.63(1) governs the Commissioner's appointment as follows: "The Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office, during good behaviour, for a term of not more than five years." The wording of this clause suggests that appointing a Commissioner is an option, not a requirement. Customarily, the language used in the enabling legislation of other review bodies and commissioners is more prescriptive. I would therefore urge that consideration be given to replacing the word may with the word shall.
Powers of Investigation
In addition to the powers of the Commissioner pursuant to Part II of the Inquiries Act at Subsection 273.63(3), and for greater certainty, the Commissioner's right of access to information and documents held by CSE (other than confidences of the Queen's Privy Council) should be confirmed.
Direction to the Commissioner
I am concerned about Subsection 273.63(6) of the Bill that authorizes "the Governor in Council to issue directions to the Commissioner respecting the carrying out of his or her duties." I believe that is an infringement on the powers of the Commissioner as detailed in Part II of the Inquiries Act. Moreover, I believe that conferring this authority on the Governor in Council would be prejudicial to the independence of the Commissioner. I am therefore in the process of seeking relief from this provision, and have requested that it be replaced with a similar provision that can be found in the legislation of other Commissioners, such as Section 55 of the Official Languages Act:
"The Commissioner shall carry out such duties and functions as are assigned to the Commissioner by this Part or any other Act of Parliament, and may carry out or engage in such other related assignments or activities as may be authorized by the Governor in Council."
For greater certainty, there may be value in adding to the transitional provision at Subsection 273.63(7) the authority for the Commissioner to continue to review an activity or examine a complaint that took place subsequent to my appointment on June 19, 1996, and before the date these amendments come into force.
The regime established by Bill C-36 for CSE is very focussed and appropriate to the highly classified and technical nature of CSE's mandate. I believe that those provisions of the Bill that would legislate my office are equally appropriate. To date, I have been satisfied of the lawfulness of CSE's activities, and I have given the Minister of National Defence my assurance in that regard. I am confident that the passage of these provisions of Bill C-36 will provide greater certainty to my review and reporting functions.
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