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.
3:45 p.m.
Bloc
Luc Malo Bloc Verchères—Les Patriotes, QC
Excellent! Perfect! In that case, I may perhaps have two.
My colleague Mr. Bachand wanted me to ask you whether members of Parliament are allowed to visit the centre's facilities.
3:45 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
Unfortunately, that's a matter over which I have absolutely no control. You'll have to request permission from Mr. Adams, the chief of the Establishment.
3:45 p.m.
Bloc
Luc Malo Bloc Verchères—Les Patriotes, QC
Very well.
Perhaps my colleague Ms. Faille can ask a supplementary question.
November 18th, 2010 / 3:45 p.m.
Bloc
Meili Faille Bloc Vaudreuil—Soulanges, QC
I'll come back to the question later.
Can you tell us about the cases currently before the court regarding private businesses, threats and complex cyber attacks? With regard to supplies, there are currently cases before the court. Are you required to work on that?
3:45 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
Not technically, at least at this stage.
3:45 p.m.
Bloc
Meili Faille Bloc Vaudreuil—Soulanges, QC
The questions I'll have to ask later are longer and concern Judge Iacobucci's findings and the Maher Arar report.
I may not have enough time to ask my question. I'll come back to it in the next round.
3:45 p.m.
Conservative
The Chair Conservative Maxime Bernier
Perfect. Thank you very much.
I'll now hand over to Mr. LeBlanc for a few minutes.
3:45 p.m.
Liberal
Dominic LeBlanc Liberal Beauséjour, NB
Thank you, Mr. Chairman.
Welcome to the Standing Committee on National Defence, Mr. Décary.
I don't really have any questions to ask you. I just want to congratulate you on your appointment and to tell you, on behalf of my Liberal colleagues, that we are pleased that someone of your experience and qualifications has accepted this important position. We frankly wish you every success throughout this important parliamentary mandate.
As I told the Chairman, anyone who attended law school in the 1990s followed the decisions of the Federal Court of Appeal, on which you were an important judge.
I am pleased that you've accepted this position and wish you every success. That's all.
3:45 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
Thank you all the more for those remarks, Mr. LeBlanc, since 40 years ago, I occupied an office on the first floor while your father occupied a much larger office above, and that made a lot of people jealous.
3:45 p.m.
Some hon. members
Oh, oh!
3:50 p.m.
Conservative
The Chair Conservative Maxime Bernier
Thank you.
Thank you, Mr. Décary.
I now hand over to Mr. Calkins.
It's your turn for seven minutes.
3:50 p.m.
Conservative
Blaine Calkins Conservative Wetaskiwin, AB
Thank you, Mr. Chairman.
The chairman has already thanked you for coming, and of course I also thank you very much for taking on this role. I wish to extend our gratitude on behalf of our government, on behalf of our caucus colleagues, for your acceptance of this.
Going through your resumé is quite a daunting task in and of itself. I don't think we have any pertinent questions that would in any way judge your qualifications for doing the job, but I think what would be helpful, to me anyway, is if you could help expand a little bit on the breadth of the various organizations that would be affected--the RCMP and obviously National Defence--the breadth of all of the various types of information that you would have a look at.
In your statement here you said:
My role, as you well know, is defined under the National Defence Act...to ensure their compliance with the law, conducting any investigations I deem necessary in response to any complaints about CSE....
I would ask you, given the fact that it was established in 2001, can you give us an idea, a ball park number, of how many complaints there are and how many would be dealt with in a particular year?
In your next paragraph, you say:
...the functions of the CSE have basically been as follows (you will understand that I am reducing them to their essentials): a) gather foreign signals intelligence, b) help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada;
A few years ago, there was an attempted takeover of MacDonald Dettweiler, a private firm. Our government basically turned down that acquisition based on the fact that some of the technology and information there would have been important. I know it's before your time, but would that have been something that you or the CSE would have advised the government on, something of that nature?
Perhaps you could elaborate for me. On page 3 here, you say:
...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.
I'm not a lawyer. I'm a simple farm boy from Lacombe, Alberta. Could you explain to me what quasi-constitutional means?
3:50 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
Is that all?
3:50 p.m.
Some hon. members
Oh, oh!
3:50 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
First, I must say that I have been in my position for only four months now. So I still have a lot to learn, especially about what happened before I got here.
As regards the matter of the take-over, for example, I must immediately tell you that I don't know the answer to that.
As for the question on the
breadth of information, I would like to know if you could clarify what it is you're asking me to talk about in the first part of your question.
3:50 p.m.
Conservative
Blaine Calkins Conservative Wetaskiwin, AB
Obviously, you refer to the legislative responsibility under the National Defence Act, where the Anti-terrorism Act has made changes. Are there any other acts where the Anti-terrorism Act has made changes? Are any communications going out within...?
I seek a little more clarification on the breadth. You talk about advising the government on electronic...you say “ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada”. So are we talking about nuclear reactor facilities? How broad is the mandate that was given by the Anti-terrorism Act and all of the changes that brought about, insofar as the role of the Communications Security Establishment?
This is the first I've ever heard of it as a parliamentarian. I'm a relatively new parliamentarian. We've got something in common; we're both relatively new. Could you help me understand how big this is?
3:50 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
I'll do my best in a matter of minutes.
You would first have to read the text of the act that confers these powers on the CSE. First you would see that the Establishment gathers foreign intelligence. By definition, it cannot gather information on a Canadian, whether that person is in Canada or elsewhere in the world. When we talk about the CSE's activities, it must always be kept in mind that they are extremely limited with regard to objectives and that the number of interceptions related to Canadians is very limited. I'll take this opportunity to go on right away to address the question of complaints.
Since the Office of the Commissioner of the Communications Security Establishment was established, only two complaints have been brought to our attention, and neither has warranted a public hearing. Very little intelligence concerning Canadians is forwarded to the CSE. Furthermore, it is so well controlled, in my opinion, that it can give rise to very few complaints.
As for the government's computer structures, the government decided that certain facilities were more critical than others. It wants to ensure that its computer systems, particularly in the areas of defence and foreign affairs, is protected from any cyber attack. It is up to the CSE to find the technical means necessary to prevent those attacks. This is not a field where I will have to intervene a lot as Commissioner because such attacks will not very likely concern Canadians or Canadians' privacy. In my view, Mr. Adams, the CSE chief, could answer that question better than I.
As for the distinction between quasi-constitutional and constitutional rights, the Canadian Charter of Rights and Freedoms grants every Canadian the right to security. That right is written in the Constitution. That is why I say it is constitutional in nature. The right to privacy, on the other hand, is established by the Privacy Act. The courts have held that this is a quasi-constitutional right. It therefore does not have the same capacity to bring about action, but from the moment it is at issue in a matter addressed by a court, this gives it virtually equivalent status. That's what I did when I was a judge, and that's what I will continue to do as Commissioner.
3:55 p.m.
Conservative
3:55 p.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you, sir, for joining us today. I, too, have read your resumé, and I'm impressed by the breadth of your experience and knowledge and by the fact that you have played hockey for Jean-de-Brébeuf and the University of Montreal. I note in one of your comments that you escorted my former law partner, Mr. Williams, who was also a hockey player with Vancouver. We at least share one thing in common: we both attended the University of London to do a master's degree in law.
I, too, am impressed that you would be willing to undertake this important work.
I have a couple of questions about how you see the function of reporting to the minister. I know with the annual report we have in front of us, the most recent one written by your predecessors, there's an appendix B, with a list of 55 classified reports to the minister on various things. I'm assuming you would have access to them.
How are these reports different from the report to the minister that's made public? If, for example, as I see here, one of your obligations is to report to the minister on perhaps deficiencies in compliance with the legislation, where does that lead? If you tell the minister that some individual in CSE hasn't complied with the act in this and that or the other case, what happens then? Do you see any further responsibility, as commissioner, if nothing happens as a result of that? How do you see your role in these circumstances?
3:55 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
First, to take you up on the hockey thing, I must say in those years, 1972, there was a big Canada-Russia series--
3:55 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
--and Ken Dryden was in the net for Canada. I was always mad at him because my dream as a kid was to be the first lawyer playing for the NHL.
3:55 p.m.
Some hon. members
Oh, oh!
3:55 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
I don't think Mr. Dryden is here today.
It is important to point out that I do three kinds of reports. There's the annual report that you have here and which obviously contains no classified information. You'll notice that the 55 reports you referred to aren't identified as such in a very specific way, and that's obviously important for security matters.
The annual report is a report in which I tell the minister what I've done and what my team did during the year. I tell him what kind of review of the CSE's activities I did during the year. It's ultimately an information report, much more than anything else.
The reports referred to in the annual report are confidential reports concerning a specific CSE activity that I have reviewed or that my officers have examined during the year. In those reports, we get to the bottom of things. Our review is conducted on site, on the CSE's computers. We look at how they get their information, how they assess whether a certain piece of information concerns a private communication with a Canadian and how they conserve and use that information. We examine their policies. We have access to all their documents.
Based on that review, I am able to tell the minister whether or not I think the CSE has complied with the act. Thus far in the CSE's history, the conclusion on every occasion has been that, yes, there has been compliance with the act, but there are improvements that should be made to the system. These are obviously not things I can talk about publicly. However, if we believe that a CSE policy could be improved, we make a recommendation to that effect.
To date, as I say in the annual report, 94% of the recommendations we've made have been followed up by the CSE. As for the remaining 6% of recommendations, it's not that they weren't followed up; it's simply that circumstances changed and there was no reason to act on them.
The third point concerns non-compliance. This is very important. It isn't at all related to the reports. If I came to the conclusion, in reviewing a CSE activity, that there had been a violation of the act, my duty would then be to send notice immediately to the Minister of National Defence and to the Attorney General of Canada informing them that there had been a breach of the act and obviously inviting them to take the necessary action.
I obviously can't know what action would then be necessary, but that has never occurred in the history of the office.