Debates of Nov. 15th, 1994

Communications Security Establishment

[Val Meredith, Reform, Surrey—White Rock—South Langley, BC]

Mr. Speaker, it is my pleasure today to speak to the motion put forth by the hon. member for Scarborough-Rouge River.

The question today is not whether this House should support this motion but rather why has it taken so long to be considered. More than 10 years ago Parliament passed legislation ensuring that the activities of the Canadian Security Intelligence Service were reviewed by an independent body.

Nobody on the government side of this House would suggest that CSIS should not have an oversight body. Yet a few weeks ago ministers tried to convince this House and all Canadians that the Communications Security Establishment did not require a review body. In response to a number of questions put to her by the official opposition, the Deputy Prime Minister used the following response over and over again: "The CSE has no mandate to spy on Canadians".

This response is interesting for a couple of reasons. First, the Deputy Prime Minister was not asked about the mandate of the CSE. She was asked if it ever spied on Canadians. She refused to answer that question, opting instead to refer to the mandate of the CSE. Let us look at the mandate of the CSE. Actually, I would love to look at the mandate of the CSE but I cannot. It does not appear to have one, certainly not by statute.

In September 1990 the special committee on the review of the Canadian Security Intelligence Service Act and the Security Offences Act tabled its report entitled "In Flux, But Not in Crisis". On page 153 of this report there is the following passage on the CSE:

This organization clearly has the capacity to invade the privacy of Canadians in a variety of ways. It was established by order in council, not by statute, and to all intents and purposes is unaccountable. While the committee understands that this agency must be shrouded in secrecy to some degree, it believes that Canadians should be in a position to understand what the organization does and should not have to wonder whether their rights and freedoms have been infringed. The committee has evidence that both the RCMP and the service have asked the CSE for assistance and as such, the committee believes that the Communications Security Establishment should have a statutory mandate that provides for review and oversight mechanisms for the agency.

Here we have an all party committee of the last Parliament calling for an oversight and review of the CSE. It is not surprising that one of the members of that special committee was the hon. member for Scarborough-Rouge River. He recognized then that there was a need for accountability and he continues to call for that accountability. Unfortunately his call has not been heard by members of his own party who sit in cabinet.

The Minister of National Defence believes there is already sufficient review of the CSE.

In response to a question from the official opposition on October 24 the minister made the following comments: "With respect to the CSE in particular, it is a fully constituted part of the Department of National Defence. The Communications Security Establishment reports to the Minister of National Defence who is a member of cabinet and who answers to this House of Commons".

The minister believes he has firm control of the CSE and that his being held accountable in the House is sufficient. Perhaps the minister should review the contents of the government's response to the special committee report "In Flux" entitled: "On Course: National Security for the 1990s". On pages 54 and 55 of this report the following statement is made: "CSE is under the control and supervision of the Department of National Defence". This is totally consistent with the comments of the current Minister of National Defence. "The chief of CSE is accountable to the deputy minister of national defence for financial and administrative matters and to the deputy clerk, security intelligence, and counsel, in the Privy Council Office for policy and operational matters".

Does this sound like a fully constituted part of the Department of National Defence like the minister suggests? He only has control of CSE's finances and administration. He does not have control of CSE's policies or operations. How can he be accountable?

Actually there is another interesting comment in "On Course". The previous government stated that it had been considering providing the Minister of National Defence with some additional capacities for review of the CSE. This statement would suggest that even the minister did not have complete authority to review the operations of the CSE. If the CSE does not have to answer to the minister, who is it accountable to?

That is why we are addressing this motion today. In this day and age Canadians will not accept comments from a minister that everything is okay, trust me. There has to be some form of external review.

It is well known that I am not a big supporter of the Security Intelligence Review Committee. I feel like my official opposition members that there are some real problems with the appointment to SIRC but I do feel it is a logical body and is in place to perform this review.

Canadians recently got their first significant look at the CSE with the release of the book Spyworld . It was written by a former employee of the CSE and provides Canadians with a glimpse of one portion of that organization.

When it was released Spyworld created a minor sensation with some of its accusations that the CSE had been used to spy on Margaret Trudeau, on some of Margaret Thatcher's cabinet ministers and on René Lévesque.

These incidents are peripheral events in the book. Barely any script is used to describe those incidents. However, they did emphasize the need for external review for the CSE.

It did not appear that anybody was up in arms with the main thrust of the book which was that Canada intercepts communications for intelligence purposes. It was only a few questionable incidents that caused the furore. While electronic eavesdropping may be offensive to some, it is a fact of life in today's electronic information highway.

Is our government outraged at the prospect of other countries intercepting our government communications?-no. Instead it has taken measures to combat it. Offices are electronically swept and phones are encrypted. It is part of today's reality. Similarly, no one is overly concerned that Canada may be doing the same thing to others.

As "In Flux" states, this organization clearly has the capacity to invade the privacy of Canadians in a variety of ways. This is confirmed in the book Spyworld when the author states that when CSE employees were testing or tuning their equipment they routinely listened to the conversations of Canadians. It is that capacity that has to be monitored to ensure that it is not abused.

The best way to ensure that there are no abuses is to open the operations of the CSE to external review. I therefore call upon all members of this House to support this motion put forth by the hon. member from Scarborough-Rouge River.

[Tom Wappel, Liberal, Scarborough West, ON]

Mr. Speaker, I was very pleased to second the motion put forward by my colleague and neighbour from Scarborough-Rouge River. I did so because I believe that as always my colleague has approached this matter from a clear, analytical, legal point of view, has investigated the situation to his satisfaction and has proposed a solution that he believes and I believe to be reasonable.

What I want to do in the 10 minutes that I have is just take a look quickly at the nature of the motion, why I support it and what the problems are that I see. If this motion were to pass it would send a signal to the government that the Communications Security Establishment should be under the watchful eye, if I can put it that way, of the Security Intelligence Review Committee which is a civilian review committee made up of privy councillors. Their current job is to keep a watchful eye on the Canadian Security Intelligence Service.

In order to make some sense of this, we have to know what we are talking about. What is the Communications Security Establishment? It sounds like a very laundered, nice, clean phrase. To me it is like a shadow. One can see a shadow if one knows where to look but one cannot touch it, feel it, speak to it. One cannot get answers from it and that is a problem. Like a shadow it can loom large, it can be small, it can move away. Like a shadow it can be there when we do not even notice it. I am not saying it is a problem, it is a potential problem.

What does it do? What is the Communications Security Establishment? In order to know what it does, we have to look at something called foreign intelligence. What is foreign intelligence? I am quoting from the Department of the Solicitor General: "Foreign intelligence refers to intelligence or information concerning the capabilities, intentions or activities of foreign states, corporations or persons. It may include information of a political, economic, military, scientific or social nature and can produce information with security implications".

From everything I know about CSE, it certainly would fit within that definition. It has two functions. Before I get to those two functions, I want to remind this House that the CSE does not exist alone in the world. There are comparable organizations in other countries and it might be interesting to let the House know what those organizations are so that we can see where Canada fits in.

In the United States there is such an agency. It is called the National Security Agency. In the United Kingdom it is called the Government Communications Headquarters. In Australia it is called the Defence Signals Directorate and in New Zealand it is called the Government Communications Security Bureau.

Communications is the link here but it is not communicating. It is listening to communications. The question whose communications is it listening to? Might it be our own private communications? We do not know.

How did CSE come to be? How did the shadow come to exist? Was it an act of the Parliament of Canada?-no. It was by executive order, by order in council. This is a very significant point because it is therefore not a creature of statute and I want to refer to that near the end of my remarks.

Having been created by order in council, what is its purpose? What does it do? Well, we are told that it has a signals intelligence capability sometimes known as SIGINT, that is offensive in nature. I guess that means it is intrusive. It listens in on conversations. Then there is an information or communications security component sometimes known as INFOSEC or COMSEC. These sound like codes to launch missiles from a site in Boulder, Colorado. INFOSEC or COMSEC is a defensive capability.

We are told by Ward Elcock, who at that time was the deputy clerk and in charge of at least a portion of CSE, that one of the functions of COMSEC deals with security of communications of the Government of Canada. It is very important. The second responsibility is the collection of signals intelligence which is intended to provide the government with foreign intelligence on the diplomatic, military, economic, security and commercial activities, intentions and capabilities of foreign governments, individuals and corporations. I suppose there is nothing wrong with that. We want to make sure we are protected in this country.

That is what it does, assuming anybody can understand INFOSEC, COMSEC, SIGINT, et cetera. Presumably the people who work there-the chief as he is called or perhaps it is a she now, we do not know-they know what it is supposed to do.

One might say fine, we know how it was created. We know what it does. To whom does it report? That is a legitimate question. Since there is no statute one can assume it does not report to Parliament. Guess what? We are right. It does not report to Parliament. Presumably it reports to the Minister of National Defence. The Minister of National Defence is supposed to report to Parliament. The chief, who I mentioned before also reports to the deputy minister of National Defence for financial and administrative matters interestingly enough, and also to the deputy clerk, subtitled security and intelligence and counsel, in the Privy Council Office for other matters.

What is the missing link? The people of Canada. The missing link is this Parliament. Is that a problem? As I see it there is a problem. There is no legislative mandate upon which to found

the intrusive actions of this particular agency, or I should say potentially intrusive, on Canadians.

There are no written rules by way of statute or regulations. There may be written rules that the chief from time to time issues or the deputy clerk, or the deputy minister, or the Minister of National Defence. If there are written rules in effect they are unknown rules, certainly unknown by the people of Canada.

Without public scrutiny I maintain there is a credible argument to say there are no proper controls. After all if everything is done behind closed doors how can one ever know if the controls were properly applied? What is more important, there is no monitoring to ensure that laws are not being broken and that if laws are broken that there is some mechanism to deal with that. To me that is a major potential problem.

Contrast this to our own spy agency. We do not call this a spy agency; we call it the Communications Security Establishment. However our own spy agency which we acknowledge is a spy agency was created under statute by this Parliament. It was given rules by this Parliament. It reports to a minister who then reports to this House yearly. It is required in effect to be monitored by the Security Intelligence Review Committee, which as I said is a civilian agency.

I have to ask myself, if it is good enough for our spy agency why is it not good enough for our Communications Security Establishment? Indeed, this is not some flash that I had. This was recognized in the parliamentary committee report "In Flux but not in Crisis" that my various colleagues have talked about. It recommended not only as this motion does that SIRC should review CSE's work, but also that CSE should be formally created by statute.

I certainly support both of those recommendations which indeed were unanimous. I cannot see any logical basis in a democracy not to have the Parliament of Canada through some committee review this agency. I am pleased therefore to support the motion.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Speaker, for months now the official opposition has been alerting the government about this national security problem. The opposition has questioned the government repeatedly in an attempt to find out who controlled whom, who ordered this or that job, exactly who asked for which investigation, but has never been given an answer.

And yet some questions were easy to answer. We were just asking for the names of people who are paid out of Canadian and Quebec taxpayers' money, but to no avail. I personally asked, in all sincerity, who was controlling the spies in this country, specifically with regard to CSE, but never got any answer. The official opposition received no satisfactory answer and neither did millions of Quebecers and Canadians. This is clear from the newspapers and editorials.

Our worries began with the disconcerting revelations about the illegal activities of the Canadian Security Intelligence Service. These were followed by the new revelations about the Communications Security Establishment, which only added to our fears and confirmed that nobody was keeping an eye on the spies in this country, which prides itself on being democratic and one of the best countries in the world.

After weeks of waiting, what is the government offering us to set our minds, and those of taxpayers, at rest? Nothing. Finally, a government backbencher was moved to present the following motion: "That, in the opinion of this House, the government should amend the Canadian Security Intelligence Service Act to authorize the Security Intelligence Review Committee to review the operations of the Communications Security Establishment". This is a very telling motion, one which confirms our concerns and one which, in particular, proves that the official opposition was right.

First of all, the member is to be congratulated for having understood the official opposition's indignation on this issue. He is unfortunately one of the few to have understood our legitimate concerns, or rather he is one of the rare members of the present Liberal government who, upon crossing the floor, did not change his position on national security.

Need I remind you that when they were in opposition, the Liberals demanded exactly what we have been demanding for months, that is, more parliamentary control over spy organizations in Canada? We only have to read House and committee minutes to see that, in their lean years, the Liberals were calling for more openness. The times have changed now that their bellies are full. True, the carelessness and lack of action are typical of current-day Liberals, but it is still amazing in this field.

I must conclude that we will have to be satisfied with this motion when disclosures and allegations of illegal activities by the CSE are increasing and suspicion becomes the rule. What will this motion accomplish? Will this proposed amendment, if it is adopted, reassure taxpayers? Will the proposed amendment allow us to find out exactly what the Communications Security Establishment does and how it uses the $250 million-which is a very conservative estimate on my part-that this federal agency spends every year? This is a legitimate question we have a right to ask ourselves.

My constituents in the riding of Berthier-Montcalm are asking themselves this very question, and for good reason. To find out the answers, we must look at what the Security Intelligence Review Committee or SIRC has done in the past.

Since the past is an indication of the future, it is important to find out how these Sherlock Holmeses of national security, these truth seekers, these Colombos of Canadian espionage, these watchdogs of House secrecy, operate.

But, seriously, before putting an extra burden on these part-time defenders' frail shoulders, we must answer these questions. Putting the CSE under surveillance is a very good idea per se.

That is why I can tell you right away that I will support this motion. It is the organization to which we want to give this monitoring authority that is the problem. It is supposed to reassure the elected members and taxpayers, but its chairman says that in this service, they never say either yes or no; you will agree with me that that is not so reassuring.

As matters stand, we must answer no to the questions which I raised earlier. You will understand the reason for the Bloc Quebecois's amendment about follow-up, asking SIRC to report to this House, so that this House can monitor the organization which is supposed to monitor the CSE.

Although the motion is acceptable to the Official Opposition and the law creating SIRC, although flawed, is acceptable, I still say to you that if I were the Solicitor General of Canada and had this law in my hands, you would not recognize it once it had been through my office, it would be changed so much. As the saying goes, we make do with what we got, so we must somehow manage with the law we have. So why does the Bloc Quebecois always have concerns about SIRC? What worries us?

I think that my colleague in the Bloc Quebecois, the member for Bellechasse, summarized it very well in his opening speech, supporting the position of the Official Opposition on this subject. It is not the container but the contents of SIRC that must be changed first of all!

The well-known Conservatives on it no longer have any legitimacy. They no longer have any business there. In my opinion, they never had any business there because SIRC should be non-partisan. But since the system is the way it is, let us keep following the rules.

Again, as I did in the past, I ask, and I hope they are watching, Mr. Jacques Courtois, Mr. Edwin A. Goodman, Mr. George W. Vari, and even Mrs. Rosemary Brown, whose party no longer exists either, at least officially, to resign so that SIRC will reflect the democratic reality of the current Parliament.

With a minimum of four new members and an expanded mandate, SIRC could fulfill its primary role of watchdog. Its monitoring responsibility could then be increased.

I am anxious to see the government's position regarding this motion. I hope the Liberals will support it, especially since it is a motion tabled by a government member, a backbencher but a Liberal member. I hope that the Liberals will gladly support the motion. If it is carried in its present form, that motion will expand the responsibility of the Security Intelligence Review Committee. Consequently, it is important to get things right from the start.

I will end by saying that, in SIRC's 1993-94 annual report, the author refers to William Pitt's line to the effect that where there is no law, tyranny takes hold. Mr. Speaker, I might add that this view is based on the premise that we can trust those who are supposed to apply the law and especially to monitor it. Thank you.

[The Deputy Speaker]

The hour provided for the consideration of Private Members' Business has now expired.

Pursuant to Standing Order 93 the order is dropped to the bottom of the order of precedence on the Order Paper.

A motion to adjourn the House under Standing Order 38 deemed to have been moved.

[The Deputy Speaker]

Under an agreement made today, the Parliamentary Secretary to the Minister of Canadian Heritage because of a misunderstanding will answer a question put by the hon. member for Calgary Southeast that was not answered last evening.

[Albina Guarnieri, Liberal, Parliamentary Secretary to Minister of Canadian Heritage]

Mr. Speaker, last March the Minister of Canadian Heritage was approached in his constituency office by a constituent whom he had not met before and who he has not met since, to write a letter drawing the attention of the CRTC to his application for a radio licence.

The minister explained to this constituent that as the minister responsible, he could not interfere with the workings of the CRTC but he agreed as a member of Parliament to do his best to ensure that he was treated fairly.

On March 15 the minister wrote to the chairman of the CRTC in his capacity as the MP for this constituent, asking the commission to give the application a fair hearing. This was the letter of an MP seeking to ensure that a constituent received due process. The letter was not meant in any way to be an endorse-

ment of the licence application, nor was it intended to exert pressure on the CRTC.

On March 30 the CRTC acknowledged his letter, categorizing it as a letter in support of the licence applicant. That acknowledgement letter was never brought to his attention. If it had been he would have immediately rectified the matter.

As soon as he learned that one of the interested parties wrote to him in September regarding his "alleged support" for the licence application, he took immediate action. He wrote to the interested party clarifying his earlier letter and clearing up any misunderstanding. In this letter dated September 30 he wrote:

My letter of March 15, 1994 to the CRTC simply asked that due consideration be given to the application. It is not intended to convey support for or opposition to the application. The CRTC is the body mandated by law to make independent decisions on all such applications. It is, therefore, for the CRTC to weigh the merits of the arguments raised by the applicants and the interveners.

Members will note that he took these actions before the matter became public. He did his best to clear up the situation, not because of public or media pressure which did not exist at the time, but because it was the right thing to do.

[Warren Allmand, Liberal, Notre-Dame-De-Grâce, QC]

Mr. Speaker, on October 25 I asked the Minister of Justice whether he would amend article 690 of the Criminal Code to correct inadequacies in that section of the code and in the process that that section sets out.

This is the section of the Criminal Code which allows the Minister of Justice to order a new trial when a person has been sent to prison wrongly, unjustly, due to a mistake, due to false evidence, due to the fact that evidence has been hidden, and so on. There have been many criticisms of the article in recent years.

We are all familiar with how the article has been used. It was used in the case of Donald Marshall who was in prison for 10 years for a crime he did not commit. It was used by David Milgaard who was in prison for 23 years and found to have been convicted on false evidence.

We have seen this happen in other countries too. Recently many of us saw the film In the Name of the Father about the Gilford four in England, the Irish people who were convicted by rigged evidence. It took them considerable time to have their case reviewed and to be released from prison. In the United States there is a famous case of Rubin Carter who was in prison for a long time and then released because it was found that there was a mistake.

This is the article that gives the Minister of Justice the power to order a new trial when it is found that a mistake has been made or false evidence or hidden evidence or new evidence has been brought to light.

But the criticism is that while this is in principle a very good process, it is inadequate in that the delays are inordinately long. It took a considerable period of time for Donald Marshall and David Milgaard to take advantage of that section. The delays carried on and on.

Second, the whole process is carried on in secret and there is no accountability by the Minister of Justice and those who help him with these cases with respect to the public.

Third, the Attorney General in these matters serves both as the judge on those applications and the prosecutor and consequently there is a bit of incompatibility.

Finally the criteria for what will constitute sufficient new evidence or a mistake for release are vague and have varied from Ministers of Justice.

There have been several proposals to correct this. The major ones recently have been put forward by an organization called the association in defence of the wrongly convicted. The short word for that organization is AIDWYC. It had a conference in Toronto last February where they proposed certain changes to article 690 to make it more acceptable to take care of those, to have the whole process done in a much quicker way, to have it more accountable, to have it more objective and so on.

When will the Minister of Justice bring in changes to article 690 to accomplish some of the goals that have been put to him by such organizations as AIDWYC?

[Patrick Gagnon, Liberal, Parliamentary Secretary to Solicitor General of Canada]

Mr. Speaker, I wish to inform the hon. member that the Minister of Justice is continuing to address the concerns of those who have criticized the s.690 process by improving its procedures.

Several steps have been taken to this effect. The minister's decision in the application regarding Colin Thatcher was published to make the public aware of how the process works and what principles apply to govern the use of the s.690 powers.

The department has also published a fact sheet that describes the criteria for applying, who can apply, how and where to apply and what information applicants need to complete their applications.

The published information also describes how applications are assessed. This information shows that a great deal of work goes into the assessment of an s.690 application. To do a conscientious and thorough job takes time. Sometimes applicants submit additional grounds to be considered for their s.690 review. When such submissions are received months or even years after the initial application this extends the amount of time needed to investigate and assess cases.

I can assure the hon. member work is currently under way to reduce the inventory of applications and to process applications more swiftly.

Those who say that the process is not independent ignore the fact that the vast majority of s.690 applicants were prosecuted by provincial attorneys general. Thus, there are very few instances in which the Attorney General of Canada must consider a case that was prosecuted by his agent. When that happens from outside the department counsel are retained to assess the application and advise the minister.

It is the duty of those who assess the applications to examine them conscientiously and thoroughly as it is the minister's duty imposed upon him by Parliament to review the applications and make the necessary decisions.

[The Deputy Speaker]

Under Standing Order 38(5) a motion to adjourn the House is now deemed to have been adopted. Accordingly, the House stands adjourned until tomorrow at 2 p.m. under Standing Order 24.

(The House adjourned at 7.24 p.m.)