National Defence Committee on Nov. 18th, 2010

[Jack Harris, NDP, St. John's East, NL]

I appreciate that, and I'm certainly glad to hear that.

Is there any role beyond that? Suppose you uncovered something...and we've seen cases before, the Almalki case, the ones that have been the subject of inquires, where the information was wrongly shared, resulting in severe actions against individuals involved, including torture, etc.

If there were violations or situations such as we're talking about, there's no obligation on your part as commissioner to do anything beyond report them to the Minister of Defence and the Attorney General. You have no role in terms of either making that public.... Whether they do anything about that or not is up to the minister of the day. Is that right?

[Robert Décary]

Yes, indeed. That's what I understand from my mandate. My mandate stops when I inform the minister of any illegal acts that have been committed. What happens next is not up to me.

[Jack Harris, NDP, St. John's East, NL]

And may never be made public.

[Robert Décary]

Indeed, they might not be made public.

[Jack Harris, NDP, St. John's East, NL]

Looking at the mandate to review, it appears to be broad, in the sense that you can review...maybe I can find it here in the report. It spells out the three types of review. This says a review initiated by you as commissioner. I take it you don't have to wait for a complaint.

On another committee we had the representatives of SIRC, the Security Intelligence Review Committee, who advised us of the procedures they could take without a complaint, to look at a particular investigation or activity and go through everything associated with that on their own initiative, to ensure compliance either randomly or because they may think a particular type of investigation ought to be investigated. Do you have a similar role and powers?

[Robert Décary]

In our case, those are two completely separate mandates, thank God. Otherwise, I would be unemployed, and my team as well. As I told you, we've only had two complaints. It isn't complaints that stir us to action, but rather the fact that we have an obligation to monitor the CSE's activities, whether or not there are any complaints, so that all the activities the CSE undertakes are subject to our review, regardless of the impact those activities may have had on any individuals in particular.

Together with my team, I have the power to decide which review in particular I want to conduct in a certain year. I obviously cannot review all activities every year, but I decide every year with my team which activities we must target during that year, and we review them whether or not there are any complaints.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Thank you very much.

[Jack Harris, NDP, St. John's East, NL]

Can you give us an idea of how many individual reviews might be undertaken each year?

[Robert Décary]

At this time, and they are all in this report, it is between five and nine, I would say, depending on the year.

[Jack Harris, NDP, St. John's East, NL]

Thank you.

[The Chair, Conservative, Maxime Bernier]

Thank you very much. Merci beaucoup.

Now I'll give the floor to Mr. Braid.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you very much, Mr. Chair.

Thank you, Monsieur Décary, for being here this afternoon and for your very long and distinguished service to Canada. Congratulations on your new role.

I want to start by thanking you for an excellent presentation and a very clear description of the role and the mandate of the CSE. As my colleague mentioned, this is an organization that many Canadians don't know a lot about. I would suggest it's a sign that the CSE does its work quietly and very effectively.

Would you agree with that?

[Robert Décary]

Well, that certainly has been the finding of my predecessors so far. I'm somewhat in the same situation as you are, sir. When I was appointed, I knew very, very little about the CSE, and even less about the commissioner's role, except that it had been filled by people I knew. So I guess it is, to some extent, an illustration that the system appears to be working quite well.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Very good.

Now, as I understand your presentation and earlier answers to questions, there are essentially two components of your role. There's an oversight role, to make sure the CSE is complying with the law. There's also an aspect of your job in which you deal with complaints.

Is there a complaints mechanism, and what does that mechanism or process look like, sir?

[Robert Décary]

We have established a mechanism for complaints, which is available on the Internet. It's a mechanism that is very similar to the usual mechanism in the case of organizations that deal with complaints. People have a right to be heard, they have a right to a lawyer, and they have the right to speak, to adduce evidence, but all that's done at in camera hearings. Thus far in the history of the office, we have not had occasion to conduct an investigation of that kind.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Thank you.

What is the rough size of your staff, your team, at the commissioner's office?

[Robert Décary]

Our team consists of eight to 10 persons. We have people who work on contract as well. My team mainly consists of people who have a lot of experience in the field of security and foreign intelligence.

For example, former employees of the Privy Council Office of Canada and former members of the Office of the Auditor General of Canada work for my office on contract. So these are people used to analyzing documents—in this case, it's not documents but computers—and to assessing the work that has been done.

Given the small number of persons on our team, a considerable amount of work is nevertheless done. I believe we're currently able to do a good job of carrying out our mandate.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

Does your team include legal advisors?

[Robert Décary]

I'm entitled to an in-house lawyer, if I can use that expression. I don't have one right now because the person who occupied the position has just gone on maternity leave. I'm currently looking for a lawyer, and I can hire any expert I need to help me in my duties. I also have an outside advisor who assists me as necessary.

[Peter Braid, Conservative, Kitchener—Waterloo, ON]

I would humbly suggest, sir, that it would probably be rather intimidating for that legal advisor to have to report to and work for you, and to provide legal advice and analysis.

In any event, you clearly have significant legal experience and some international experience. How do you think both of those aspects of your background will help you do your job effectively?

[Robert Décary]

One of the things I discovered as a judge was very definitely independent-mindedness. That's the ability to rise above partisan debate. It's the ability to make a decision, regardless of the individuals involved. I obviously think that's important, as Commissioner, because I feel entirely free to do what I want. I even have powers that I didn't have as a judge. I have extraordinary investigation powers. I have the power to summon witnesses and compel the filing of documents. I can go to the CSE any time, and I must say that's an advantage that I find marvellous compared to what I had as a judge.

Internationally, as you saw, I obviously have a quite "politicized" life—"internationalized" and also "politicized". I believe I have a good sense of political reality. I also believe, quite humbly, that I've developed common sense over the years. I was known as a judge who had common sense. With the years, I've realized that, when people talk about justice, law and equity, although those are all different concepts on paper, they are ultimately united by one factor, which is common sense. Ultimately, in positions such as the one I occupy, the essential thing is to have someone who will use common sense before making any judgments.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Thank you very much.

I will now give the floor to Madame Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Earlier I said I would come back to your mandate with regard to information technologies, particularly in the security field. On page 37 of your report, you say you're going to work on electronic information networks and enable the various departments to comply with the security plan.

In practical terms, at what point do you share your recommendations? What are your interactions with the heads of the various departments?

[Robert Décary]

I'm not sure I understand your question.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Your role is an advisory, research and audit role to ensure the departments comply with respect to security. In fact, I would just like to get a better practical understanding—