Evidence of meeting #41 for National Defence in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was review.
A recording is available from Parliament.
5:05 p.m.
Liberal
Darren Fisher Liberal Dartmouth—Cole Harbour, NS
Do you, as the commissioner, see any or have you already made any recommendations on how you could tighten that up?
5:05 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
Do you want to talk about this?
5:05 p.m.
Executive Director, Office of the Communications Security Establishment Commissioner
There was a recommendation that the commissioner made to the minister to provide direction to CSE regarding his expectations for protection of privacy with respect to information that is shared with CSE's partners. We are monitoring that in terms of CSE's development. Obviously, CSE will have to be the one to take that direction from the minister. The commissioner reminded the minister and CSE of that recommendation to provide ministerial direction for the sharing of information.
5:05 p.m.
Liberal
5:05 p.m.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Thank you, Mr. Chair.
Commissioner and Mr. Galbraith, thanks for joining us today and for the hard work that you've both demonstrated throughout your entire careers.
5:05 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
That's especially true at the tender age of 74.
5:05 p.m.
Conservative
5:05 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
It's a young 74, though.
5:05 p.m.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
I want to go into your earlier comments more, regarding how the threat and the technology has evolved but the legislation and the laws in Canada have not. In your role as a supernumerary justice, what are the changes in the legislation, whether it's in the Security of Information Act or the National Defence Act, and what should we, as legislators, be considering as ways to make sure that CSE is able to keep up with the threats and the technology and to maintain and improve upon the privacy protection of Canadians?
5:05 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
As I mentioned in my opening remarks, the law was enacted in 2001 following the events of September 11. In the meantime, the technology has evolved. The legal landscape has evolved. The threat environment has evolved. The law has not kept up. That's why I'm pushing for those amendments to the National Defence Act. We've been waiting for the last 12 years.
My predecessor, the Right Honourable Antonio Lamer, said that since it was a temporary affair—this was in 2005—temporarily he would abide with the law as interpreted by the Department of Justice. Sometimes my predecessors and I don't necessarily agree with the legal interpretation given by the Department of Justice. Therefore, it's because of those ambiguities and so on.... I'm told that those amendments that we've been asking for over the last 12 years should be put forward in the near future.
5:05 p.m.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
Would any of those amendments revolve around the ministerial authorizations, whenever those requests come in from CSE?
5:05 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
It's with regard to ambiguities to start with, and also I made a recommendation to modify my role as CSE commissioner. At the present time the minister, through an authorization, could authorize CSE to intercept private communications abroad incidentally or unintentionally, if you wish. In my case, I review those activities after the fact. Some academics in particular and some media have criticized that approach saying that maybe CSE, like CSIS, should be subject to going to the Federal Court to ask for a judicial warrant. I find that almost impossible because, first of all, when CSE targets somebody outside Canada, for example, at the time, they don't know the names. They don't have any particulars, so it's really hard to obtain a judicial warrant when you're dealing with a foreign agency.
I suggested to the minister that a commissioner, as a retired judge with a lot of experience and some knowledge about the activities of CSE, maybe should act before the fact. In other words, when CSE makes a demand to the minister with regard to an authorization to intercept, let's say, private communications—and in the National Defence Act there are conditions that the minister must respect—I'm suggesting to the minister that maybe when he receives that request from CSE, it should go through me and I should have a look at it.
It's not a judicial warrant, because I'm a retired judge. Nonetheless, you would have some judicial eyes look at the conditions, look at the request, and advise the minister he shouldn't sign something that doesn't meet the conditions in the National Defence Act. In other words, it's to change the timing of my intervention. I should do it before and not after the fact. This would help the minister with regard to his accountability to Parliament and to the Canadian public.
5:10 p.m.
Liberal
Leona Alleslev Liberal Aurora—Oak Ridges—Richmond Hill, ON
Thank you very much.
Again, thank you for being here.
I'd like to follow up a bit on the question that was asked by my colleague. Are all the recommendations you are making to amend the National Defence Act in the public domain?
5:10 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
Not right now.
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Liberal
Leona Alleslev Liberal Aurora—Oak Ridges—Richmond Hill, ON
The National Defence Act is currently in the public domain, is it not?
5:10 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
Yes, I agree, but let's say CSE's procedure to do that would be for CSE to prepare a memorandum to cabinet suggesting that the National Defence Act be amended and then the cabinet would look at that and approve or disapprove whatever.
5:10 p.m.
Liberal
Leona Alleslev Liberal Aurora—Oak Ridges—Richmond Hill, ON
As an oversight body, you are looking at how the organization complies with the laws, and then you're identifying gaps in the law as well. Would it not be something that you would make a recommendation on, and because it doesn't pertain to anything secret, it could be public and therefore we, as parliamentarians and as a society, could understand where the gaps are in the National Defence Act and what recommendations and what laws need to be in place to comply appropriately?
5:10 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
This is all in my annual report, which is public.
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Liberal
Leona Alleslev Liberal Aurora—Oak Ridges—Richmond Hill, ON
All the recommendations to the National Defence Act...?
5:10 p.m.
Commissioner, Office of the Communications Security Establishment Commissioner
No, but for example, pages 43 to 44—
