Opening Remarks to the Special Senate Committee on the Subject-Matter of Bill C-36
Opening Remarks by The Honourable Claude Bisson
Communications Security Establishment Commissioner to the Special Senate Committee on the Subject-Matter of Bill C-36
October 22, 2001
Remarks by the Honourable Claude Bisson, CSE Commissioner
Madam Chair, Honourable Senators,
I am happy to have the opportunity to appear before you this morning in my capacity as Communications Security Establishment Commissioner. I am accompanied today by Joanne Weeks, the Commission Secretary, who is responsible for the office's operations. I have opening remarks and, for your convenience, I have provided these remarks to the Clerk of the Committee in written form.
Thank you for inviting me to appear today before this Committee. I will make a few remarks about those sections of the Anti-terrorist bill that deal with the Communications Security Establishment and the role of the CSE Commissioner, and then I would be pleased to respond to your questions.
I will limit my comments, both in my opening remarks and in response to questions, to those sections of the draft legislation that deal with CSE and the CSE Commissioner. I have not had adequate opportunity, nor am I sufficiently informed, to offer carefully considered views on other parts of the bill.
I am well aware of the concerns expressed by others that this legislation has been assembled in haste, and that it may be excessive in its efforts to strengthen our country's ability to counter the very real danger posed by terrorists. Your role in reviewing the many measures proposed is immensely important - given what we now know is a deadly and urgent threat to life.
The drafters of this bill were required to take into account the critical balance between the needs of the state to collect information to protect its citizens and the individual rights of those citizens to privacy and freedom. I know that one of the stated objectives of this Committee is to explore the protection of human rights and civil liberties in the application of this Act and I wish you well in your deliberations.
It must be some comfort for you to know that, although this package of legislation was drafted on an urgent basis, those parts that deal with CSE and the CSE Commissioner have benefitted from years of consideration and discussion within government.
As long ago as 1990, a Special House of Commons Committee reviewing the CSIS Act recommended that Parliament establish CSE by statute. Although the government chose not to adopt that recommendation at that time, it did indicate that it was "considering providing the Minister of National Defence with some additional capacity for review of CSE." This ultimately led to my appointment in 1996 as the first Commissioner of CSE.
The issue of legislation for CSE arose again in 1996 when the Privacy Commissioner completed a compliance audit of CSE. He concluded that, to the extent it could be established through his audit, CSE operates in compliance with the Privacy Act and the principles of fair information practices. However, he too recommended the enactment of enabling legislation for CSE.
Later that same year, the Auditor General tabled a report on the Canadian intelligence community in which he called on the government to consider the advantages of an appropriate legislative framework for CSE. He reiterated this view in a short 1998 follow-up report.
Similarly, in 1999, Senator Kelly's Special Senate Committee on Security and Intelligence recommended that CSE should have its own Act of Parliament, and that the legislation should provide for a permanent and separate review body for CSE.
In each of the first four Annual Reports that I submitted to the Minister of National Defence following my appointment, I raised the matter of legislation for CSE. I expressed the view, both in my annual reports and elsewhere, that legislation would be an appropriate development that would put CSE on a firm footing by articulating its mandate and powers and its relationships with Parliament, the government, and the Minister of National Defence. I am pleased, therefore, that such legislation is now being considered, although I am saddened by the tragedy that has made it a priority.
I might note that CSE has managed to exist very well without legislation since it was created in 1946. Its utility to the government over the decades ensured its longevity despite the absence of a statutory base. However, the passage of legislation will ensure that the agency continues to meet the needs of Canada in a more transparent way, and this is to be applauded.
In my annual reports, I have noted some of the issues that should be taken into consideration in drafting legislation for CSE.
For example, I indicated that the rapid pace of change in the worlds of security and intelligence and technology would prove a challenge to drafters. Legislation for CSE must be flexible enough to ensure it does not become dated because of changes in intelligence methods or technology. It should emphasize roles and responsibilities and broad principles, rather than detailed direction regarding, for example, the use of specific technologies. I believe the draft legislation before you accomplishes this.
I have also, of course, given considerable thought over the past several years to the issue of what would be the most efficient means for reviewing CSE.
As you know very well, CSE's mandate has been the collection of foreign intelligence on behalf of the Government of Canada, and under the proposed legislation this will continue to be the case.
Under Bill C-36, the Minister of National Defence may authorize CSE to intercept private communications, for the sole purpose of obtaining foreign intelligence, under the following conditions:
the interception is directed at foreign entities located outside Canada;
the information obtained cannot reasonably be obtained by other means;
the expected foreign intelligence value of the information derived justifies its collection; and
satisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence, or security.
Since my appointment as CSE Commissioner in June 1996, I have acquired an understanding of CSE's collection activities and practices. I have also reviewed the policies and procedures that govern them. My review activities have included identifying what mechanisms CSE has in place to safeguard the privacy of Canadians and to determine if they are appropriate to the circumstances. To date I am satisfied. However, I have advised CSE that I will continue to examine their use of new technologies to enhance their safeguarding practices. I can assure you that I will remain vigilant.
Madame Chair, this concludes my opening statement. I will be pleased to respond to your questions as will Mrs. Weeks.
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