Evidence of meeting #34 for National Defence in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cse.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Robert Décary  Commissioner, Office of the Communications Security Establishment Commissioner
Glenn Stannard  Chair, Military Police Complaints Commission

3:30 p.m.

Conservative

The Chair Conservative Maxime Bernier

Good afternoon, everyone. Welcome to the 34th meeting of the Standing Committee on National Defence. On the agenda, pursuant to Standing Orders 110 and 111, we will proceed with the review of the Order in Council appointment of Robert Décary to the position of Commissioner of the Communications Security Establishment. This order was referred to the committee on September 24, 2010. So it is a pleasure to have Mr. Décary with us.

Thank you for being with us. You have 10 minutes to make your presentation to committee members. Then they will ask you questions. Go ahead, please.

3:30 p.m.

Robert Décary Commissioner, Office of the Communications Security Establishment Commissioner

Thank you, Mr. Chairman, ladies, gentlemen, members of the committee.

First I would like to thank you for giving me the opportunity to meet with you so soon after taking this job.

Let me tell you a few things about myself. I am 66 years old, a retired judge of the Federal Court of Appeal and, since June 18 of this year, Communications Security Establishment Commissioner. I am a jurist by training but my more recent experience is as an appeal judge for some 20 years. I am a Montrealer by birth, London educated and now adopted by Gatineau.

I have devoted a good part of my life to public service. For two years I served as an assistant to the Honourable Mitchell Sharp, who was at the time Secretary of State for External Affairs. Incidentally, it was with some emotion that I crossed the threshold of the East Block. Forty years ago this December, I took up my new duties with Mr. Sharp, and my office was on the first floor of the East Block. So there is a little emotion involved in my appearance here today. I haven't been back here for 38 years.

Then, for one year, I served as executive assistant to Yvon Beaulne, Under-Secretary of State of Cultural Affairs. I practised law with a firm in Montreal and returned to Ottawa as assistant director of research with the Task Force on Canadian Unity, the Pépin-Robarts Commission. I returned to private practice at an office in Hull and combined that with a career as a legal and political columnist on the editorial pages of Le Devoir and La Presse as well as on numerous public affairs programs on Radio-Canada and TVA. I have authored several books and magazine articles.

Thanks to my law practice in Hull, I appeared more often than any other Quebec lawyer at the time before the Supreme Court of Canada, serving for more than 10 years as an agent of the Attorney General of Quebec and some 30 law firms.

In March 1990 the Honourable Kim Campbell, Minister of Justice at the time, appointed me to the Federal Court of Appeal, the second highest court in Canada. I heard some 2,060 cases and drafted reasons in over 700 of them. I sat in every Canadian province and the Northwest Territories, from St. John's to Vancouver, with many appearances in Montreal, Ottawa, and Toronto.

There are few areas of federal law that have escaped my attention. Other than my daily bread and butter, consisting of immigration, employment insurance, and income tax issues, I had the privilege, in particular, of being the first appeal judge to rule on the status of the Official Languages Act, on the constitutional validity of the Anti-terrorism Act, and on the scope of the Personal Information Protection and Electronic Documents Act.

I retired in July 2009, my sole plan at the time being to volunteer at the Olympic Games in Vancouver. I was assigned the pleasant task of being the assistant to Canadian dignitaries, which enabled me to serve as a guide to Premier Jean Charest and Premier Danny Williams.

Don't worry, luckily for me, I was not asked to guide them at the same time.

3:30 p.m.

Some hon. members

Oh, oh!

3:35 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

On June 18 of this year, the Honourable Peter MacKay, Minister of National Defence, appointed me Commissioner of the Communications Security Establishment. I must admit that it was with some apprehension and trepidation that I agreed to return—part time, I should specify—to public life. There was apprehension because I was asked to fill the shoes of great jurists like Antonio Lamer, Claude Bisson, Charles Gonthier and Peter Cory, and trepidation because trying to reconcile the rights of Canadians to privacy with the need to gather foreign intelligence and ensure Canada's security represents an utterly fascinating challenge.

My role, as you well know, is defined in the National Defence Act. Generally speaking, it involves reviewing the activities of the CSE so as to ensure their compliance with the law, conducting any investigations I deem necessary in response to complaints about the CSE, and informing the Minister of National Defence and the Attorney General of Canada of any CSE activities that I believe may not be in compliance with the law.

To understand my role, one must first have a clear understanding of CSE's mandate, as well as its limitations. Since the Anti-terrorism Act came into effect in December 2001, the functions of the CSE have basically been as follows—and you will understand that I'm reducing them here to their essentials: to gather foreign signals intelligence; to help ensure the protection of electronic information and information infrastructures of importance to the Government of Canada; and to offer technical and operational assistance to federal law enforcement and security agencies, such as the RCMP and the Canadian Security Intelligence Service.

Regarding the first two of these mandates, CSE's activities are subject to three legislative limitations of the utmost importance. Firstly, CSE is not authorized to conduct activities that target Canadians, wherever they might be in the world, nor can they target people here in Canada.

With regard to the second limitation, since situations may arise where, in conducting these two activities, CSE may unintentionally intercept a one-end Canadian communication or obtain information about Canadians, and since such information may prove essential to international affairs, defence or security, the act permits this information to be used and retained, but only if measures are in place to protect the privacy of Canadians.

And with regard to the third limitation, to provide a formal framework for the unintentional interception of private communications, the act requires express authorization by the Minister of National Defence once he or she is satisfied that specific conditions provided for in the act have been met. These are known as ministerial authorizations.

Within this context, my mandate first is to ensure that the CSE in its operational approach only targets foreign entities outside Canada; second, to ensure that the activities conducted by CSE under ministerial authorization are those authorized by the minister, and to report on this review to the minister; and third, to ensure that in all the activities it undertakes, CSE puts in place, and effectively applies, measures to protect the privacy of Canadians.

Regarding its third function, that of helping federal law enforcement and security agencies, CSE operates as an agent of the organization in question and its activities are subject to the limitations that govern that same organization under the laws that apply to it. Once again, my role consists of ensuring that the activities of CSE comply with the law. The job of monitoring the lawfulness of the activities of these other agencies is entrusted to other institutions, for example, the Security Intelligence Review Committee and the Commission for Public Complaints Against the RCMP.

Each year, the commissioner submits a report to the minister on his activities, which the minister is then required to table in Parliament. In addition, during the year, the commissioner presents the minister with classified reports containing the results of reviews of CSE activities. Here I would like to note that two years ago, the commissioner's office became an autonomous and independent agency with its own appropriation from Parliament.

Mr. Chairman, members of the committee, in December 2001, when the Anti-Terrorism Act was adopted, Parliament was faced with a dilemma. Within Canada, every individual has a quasi-constitutional right with respect to his or her privacy. And every person has a constitutional right with respect to security of the person. In addition, the state has an obligation to protect each of these individual rights and to ensure the country's security as well. These rights and obligations are not easy to reconcile: what in fact would the right to privacy mean, or the right to security of the person, in a society where security was no longer taken for granted or that was no longer free and democratic. In the Anti-Terrorism Act, Parliament tried to walk a fine line; it adopted a solution it deemed just, necessary and appropriate under the circumstances so as to allow the state to ensure its security and that of Canadians while at the same time respecting the right of every Canadian to privacy. Parliament conferred on the Commissioner, which is my role now, with respect to the activities of the CSE, the mandate to ensure that CSE fulfils the obligations imposed on it by Part V.1 of the National Defence Act, as that act was amended by the Anti-Terrorism Act, and by all other Canadian laws, including the Charter of Rights and Freedoms. Parliament has invested the Commissioner with extraordinary powers to perform his functions. I will not hesitate, where necessary, to exercise them.

In conclusion, I hope you will allow me to praise the wonderful work being done by the members of my team, who are small in number but of the highest quality. Competent, hard-working, conscientious, dedicated to their mission, these men and women ably facilitated my entry into the fascinating, but hugely complex, world of foreign intelligence. I am grateful also to the chief of CSE, John Adams, who staged a series of briefings that gave me a better understanding of the role and activities of CSE. I am fully aware, however, that my learning has just begun.

Thank you. I would be happy at this time to answer any questions you may have.

3:40 p.m.

Conservative

The Chair Conservative Maxime Bernier

Thank you very much, Mr. Décary.

I have had the privilege of reading a number of your articles and books. I definitely appreciated them since I am a lawyer myself. Thank you. I know a little about your curriculum vitae and your experience. I'm very pleased that you have accepted the position that was offered to you by my government. Thank you for being with us.

I would now like to hand over to Mr. Malo, from the Bloc Québécois, who has seven minutes.

3:40 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

Thank you very much, Mr. Chairman.

Good afternoon, Mr. Décary.

3:40 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

Good afternoon, Mr. Malo.

3:40 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

Thank you for being with us.

As you know, the Communications Security Establishment has contracted out maintenance of its premises and of the centre as a whole to the private sector.

In view of the confidential nature of the information there, don't you see that as a problem?

3:40 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

It would be better to put that question to Mr. Adams. In my view, what you're telling me is a matter that is really the responsibility of CSE, and I am not in a position today to give you an answer on that point.

3:40 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

Is it a question to which you will try to find an answer or on which you will make a judgment?

3:40 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

I'll speak to my team about it. I'm making a note of your question. If necessary, I can send you a brief answer to let you know my attitude on the subject.

3:40 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

Very good.

You concluded your presentation by saying that your learning has just begun. What aspects would you perhaps have to pay more attention to as you continue to learn what the Communications Security Establishment is and about the role you have to play there?

3:45 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

When I say my learning is beginning, that's because the field in which I am now involved is absolutely enormous. I visited CSE's offices and I saw how the interception of foreign communications worked. There are all kinds of information that I fundamentally had absolutely no idea about and which I'm beginning to learn about. For example, just learning the acronyms, what each acronym means. It's an environment full of acronyms.

It's an absolutely indescribable computer environment, at least for someone of my generation. I'm still looking at all the work that's being done and how it's being done. With my team, I went twice to see about how our offices there work. We have offices within the CSE that give us access to all their computers.

I'm talking about learning, but it's really much more about understanding exactly how each of the activities is conducted.

3:45 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

It's more an operational learning process—

3:45 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

Absolutely, yes.

3:45 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

—and a process of learning the role you have to play in it.

3:45 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

3:45 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

You also pointed out that, two years ago, the Office of the Commissioner of the Communications Security Establishment became an autonomous and independent agency with its own appropriation from Parliament.

Do you think that appropriation is adequate? Should it be reviewed in the context of the budget cuts announced by the government?

3:45 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

Are you asking me whether I agree that our budget should be cut?

3:45 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

In fact, do you have to be involved in the budget-cutting exercise? That's more my question.

3:45 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

I'll have to get back to you on that point because I was expecting to be asked if I wanted our budget to be increased. On that matter, I believe—

3:45 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

You may also answer that question, if you wish.

3:45 p.m.

Commissioner, Office of the Communications Security Establishment Commissioner

Robert Décary

Currently, we're satisfied with the budget put at our disposal. Our team is able to properly do the work we have to do. With regard to cuts, if obligations are imposed on us, we will obviously have to act accordingly.

Quite honestly, I wouldn't be able to answer that question today.

3:45 p.m.

Bloc

Luc Malo Bloc Verchères—Les Patriotes, QC

Mr. Chairman, do I have time to ask a final question?

3:45 p.m.

Conservative

The Chair Conservative Maxime Bernier

You have two minutes.