Proceedings of the Special Senate Committee on the
Subject Matter of Bill C-36

Issue 1 - Evidence, October 22, 2001 (evening sitting)

The Special Senate Committee on the Subject Matter of Bill C-36 met this day at 6:45 p.m. to examine the subject matter of Bill C-36, to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism and explore the protection of human rights and civil liberties in the application of this Act.

Senator Joyce Fairbairn (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this is a continuation of our Special Senate Committee on the Subject Matter of Bill C-36, which we have been studying for the first time today, beginning this morning, and continuing this afternoon and this evening. We have with us a special guest, the Honourable Claude Bisson, who is the Commissioner of the Communications Security Establishment, and with him is the commission's secretary, Joanne Weeks.

We are pleased you could give us your time this evening. Your evidence will be of great interest to all members of this committee. Many Canadians do not know much about the Communications Security Establishment, and it will be good to hear your views on this bill, Mr. Bisson, and also about the work you do as commissioner.

[Translation]

Mr. Claude Bisson, O.C., Commissioner, Communications Security Establishment Commissioner's Office: I am delighted to have this opportunity to address the committee members this evening in my capacity of Communications Security Establishment Commissioner, a position which I have held since its inception in 1996. With me is Ms Joanne Weeks, who has served as Commission Secretary since 1996 and who is responsible for the day-to-day running of my office. A written version of my opening remarks has been submitted to the clerk of the committee for your information.

[English]

Thank you for inviting me to appear before this committee. I will make a few remarks about those clauses of the anti-terrorist bill that deal with the Communications Security Establishment and the role of the CSE Commissioner, and then I will be pleased to respond to your questions.

You will understand that I will limit my comments, both in my opening remarks and in response to questions, to those clauses of the draft legislation that deal with the CSE and the CSE Commissioner. I have not had adequate opportunity for study, nor am I sufficiently informed, to offer carefully considered views on other parts of the bill.

I am well aware of the concerns expressed by others that this proposed legislation has been assembled in haste, and that it may be excessive in its effort to strengthen our country's ability to counter the great danger posed by terrorists. Your role in reviewing the many measures proposed is immensely important, given what we know now is a deadly and urgent threat to life.

The drafters of this bill were required to take into account the critical balance between the needs of the state to collect information to protect its citizens, and the individual rights of those citizens to privacy and freedom. I know that one of the stated objectives of this committee is to explore the protection of human rights and civil liberties in the application of this proposed act, and I wish you well in your deliberations.

It must be some comfort for you to know that although this package of proposed legislation was drafted on an urgent basis, those parts that deal with CSE and the CSE Commissioner have benefited from years of consideration and discussion within the government.

[Translation]

By 1990, a special House of Commons committee in charge of reviewing the Canadian Security Intelligence Service Act recommended that Parliament enact legislation for CSE. The government of the day chose not to act on this recommendation, but let it be known, and I quote:

...that it was planning to give the Minister of National Defence additional powers of review over CSE.

This led to my appointment in 1996 as the first CSE Commissioner. The notion of enacting legislation for CSE came to light once in 1996 when the Privacy Commissioner undertook a review of CSE to verify its compliance with the provisions of the Privacy Act.

The Privacy Commissioner determined at the time that based on the review findings, CSE was carrying out its operations in compliance with the Privacy Act and with the principles governing fair information practices. However, in 1996, the Commissioner also recommended that CSE be given a statutory base.

[English]

Later that same year, the Auditor General tabled a report on the Canadian intelligence community in which he called on the government to consider the advantages of an appropriate legislative framework for CSE. The Auditor General reiterated this view in a short, 1998 follow-up report.

Similarly, in 1999, Senator Kelly's Special Committee on Security and Intelligence recommended that CSE should have its own act of Parliament and that legislation should provide for CSE to become a permanent and separate body.

I now come to my part. In each of the first four annual reports that I submitted to the Minister of National Defence following my appointment - and that were tabled in Parliament - I raised the matter of legislation for CSE. I then expressed the view, both in the reports and elsewhere, that legislation would be an appropriate development that would put CSE on a firm footing by articulating its mandate and powers, and its relationship with Parliament, the government and the Minister of National Defence.

I am pleased, therefore, that such legislation is now being considered, although I am saddened by the tragedy that has made it a priority.

CSE has managed to exist very well without legislation since it was created back in 1946. It has provided a service to the government over the decades, despite the absence of a statutory base. However, the passage of legislation will ensure that the agency continues to meet the needs of Canada in a more transparent way, and that is to be applauded. In my annual report, I have noted some of the issues that should be taken into consideration in drafting legislation for CSE. For example, I indicated that the rapid pace of change in the worlds of security and intelligence technology would prove a challenge to drafters. Legislation for CSE must be flexible enough to ensure it does not become dated because of changes in intelligence methods or technology. It should emphasize roles, responsibility and broad principles, rather than detailed direction regarding, for example, the use of specific technologies. I believe the draft legislation that will be before you soon will accomplish this.

I have also given considerable thought over the past several years to the issue of what would be the most efficient means for reviewing CSE. As you know very well, CSE's mandate has been the collection of foreign intelligence on behalf of the Government of Canada. Under the proposed legislation, this will continue to be the case. Under Bill C-36, the Minister of National Defence may authorize CSE to intercept foreign communications for the sole purpose of obtaining foreign intelligence under the following conditions: First, it is directed at foreign entities located outside Canada; second, the information obtained cannot presumably be obtained by other means; third, the expected foreign intelligence value of the information derived justifies its collection; and fourth, satisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.

Since my appointment as CSE Commissioner in June 1996, I have acquired an understanding of its activities and practices. I have also reviewed the policies and procedures that govern them. My review activities have included identifying what mechanisms CSE has in place to safeguard the privacy of Canadians and whether they are appropriate to the circumstances. To date, I am satisfied. However, I have advised CSE that I will continue to examine their use of new technologies to enhance their safeguarding practices. I assure you that I will remain vigilant.

[Translation]

That concludes my opening remarks. Ms Weeks and I will be happy to answer your questions.

[English]

Senator Kenny: Sir, am I correct that your role is to review the activities of the establishment in terms of their complying with the law, but you do not review them in terms of their effectiveness and their capability in gathering electronic information?

Mr. Bisson: My mandate is to review activities to ensure that they are in conformity with the law. That will remain my mandate.

Senator Kenny: It would not be appropriate, then, for us to ask questions on whether or not their technology is up to speed, or whether or not they have the capacity to analyze the information they receive. We should save those for someone else?

Mr. Bisson: The operation of CSE is not my domain.

Senator Kenny: When you are collecting electronic information, there is a lot of material flying back and forth. First, how do you separate the material that it is legal to collect from that which is not?

Mr. Bisson: I am not in the business of deciding that. It is being done by CSE.

Senator Kenny: You are overseeing it, though. You have the responsibility to make sure that they are complying with the law. How do you determine that without asking that very question?

Mr. Bisson: The new proposed legislation will bring a new element to the act, but all the interceptions must come from foreign countries or involve foreign persons. In my review, I ensure that CSE has all the mechanisms - that is, policies first and then mechanisms - to ensure that they do not intercept communications in which a Canadian is involved. If by any chance they do, then I ensure that there are mechanisms for destroying these communications.

Senator Kenny: Could you give us an example of how you can tell, or how CSE can tell, whether or not they are overhearing a Canadian? When it is an electronic signal flashing through the air, perhaps in code, how do they know whether it started or finished with a Canadian? How do they know it is foreign?

Mr. Bisson: I would prefer you to put these questions to CSE. They are the ones doing the operations.

Senator Kenny: How do you check them, then? Do you just take their word for it?

Mr. Bisson: We do not review all the interceptions they make. We established a program to do random checks of the interceptions.

Senator Kenny: You do spot checks?

Mr. Bisson: Exactly.

Senator Kenny: What happens when you do a spot check? Walk us through a typical spot check. Tell us how it works.

Mr. Bisson: Maybe Joanne Weeks could do that better, because she is more involved than I in these techniques.

Ms Joanne Weeks, Commission Secretary, Communications Security Establishment Commissioner's office: We run a program of testing the holdings of CSE, be they voice or image, faxed or text. Any of the work we do does involve testing the holdings. There is a system in place whereby, at the source where the information is collected, certain information that can be readily identified as Canada-based can be filtered out. There are non-selection criteria that could include Canadian area codes, postal codes, addresses, e-mail addresses that, when queried, simply do not come through to the system.

In the event that something should come through inadvertently, such as an e-mail attachment, which can happen, it is handled in a manner consistent with the Privacy Act, and normally destroyed.

Once we have gone through an extensive testing period, Mr. Bisson, the commissioner, comes out and we explain to him our methodology and procedures. He has hands-on experience with what his staff is doing.

Mr. Bisson: We have a downtown office in Ottawa, located at 90 Sparks Street. We operate mostly from there. We also have offices on Heron Road. The people on our team often go to Heron Road. I do not go there often. I mostly come to the office at 90 Sparks Street. I report for my team. We decide what steps should be taken after that.

I was at the CSE much more often in 1996 in order to familiarize myself with their operations. Now, however, I go every two or three months, something like that.

Senator Kenny: Just so we are clear, the word "defeats" was used. Could you tell us what that means?

Ms Weeks: I am sorry, Madam Chair, and Senator Kenny, that I used a jargon term. A defeat is like a block, something that precludes information from coming through, based on predetermined or defined characteristics.

Senator Kenny: Just so we understand clearly, you run the staff for the commissioner. How large is the staff that is technically doing these checks?

Mr. Bisson: I am a part-time commissioner, based in Montreal, but I come to Ottawa, I would say once a week, usually for a full day. Ms Weeks is here for administrative assistance. We also have personal contracts. My second mandate will expire in June next year. Thus, our present program runs until June. We establish a three-year schedule and decide what to do. As I mentioned, we cannot do everything.

Senator Kenny: My question, sir, is: How large is Ms Weeks' staff?

Mr. Bisson: About five people on a contractual basis.

Senator Kenny: What are their qualifications?

Ms Weeks: We have quite an assortment of skills and talents. We have technical people at a very senior level. We have administrative people. We have opted to contract senior, former government or retired government officials, including experts in IT, rather than having a full-time staff. We staff on a contractual basis, depending upon the nature of the studies we are about to undertake.

Senator Kenny: So you have five people who make all of these studies.

Ms Weeks: Yes.

Senator Kenny: How many intercepts are these five people responsible for supervising or examining?

Ms Weeks: We conducted one particular study in which we looked at a one-month period. In two instances, we examined all of the intercepts. In one, there were simply millions and millions, so we had to opt for a percentage. It was done to develop a baseline for comparative purposes.

Our findings were quite astonishing in terms of the very, very few interceptions that were Canada-based. They had been handled in a manner consistent with the Privacy Act.

Senator Kenny: Help us with the statistics, then. What percentage of intercepts do you need to examine to develop a level of statistical comfort?

Mr. Bisson: We do not judge that by the percentages. It would be impossible.

Ms Weeks: In this one-month period, sir, we examined all the voice intercepts and all the image intercepts. Quite frankly, I do not know what percentage of the text intercepts we examined. That was the one that was in the millions. However, we were more than pleased with the results of the testing.

Senator Kenny: What is the order of magnitude of the intercepts you did study? You threw me for a bit of a loop when you said millions and millions of intercepts and you have this staff of five people. You also said you examined all of the voice and all of the text intercepts. How many voice and texts intercepts were there in the month in which you did the study?

Ms Weeks: This was 18 months ago. There were hundreds of thousands.

Senator Kenny: How can five people examine hundreds of thousands of intercepts?

Ms Weeks: It was not five. It was two people pulling the information in on dedicated computers that had been set up for us for testing purposes.

Senator Kenny: Help me through this, then. We are talking about hundreds of thousands of messages. How can two people evaluate them so that you are confident they are coming from and going to people legally?

Mr. Bisson: What is important, if I may say so, is not the quantity. It is to examine the policies that are in place in the CSE to see that they are followed.

Senator Kenny: I accept that, sir, but my question to Ms Weeks was: If, during the one month when the policies were being tested, all of the text and all of the verbal messages were examined, how did two people accomplish that if the number was in the hundreds of thousands?

Ms Weeks: Madam Chair, Senator Kenny, we selected a one-month period of traffic. The study itself went on for close to one year. It was not one month of testing. Over a year, we examined one specific month's holdings. It could never have been accomplished in a month. However, for the sake of establishing a sample, we picked a one-month period and studied it exhaustively.

[Translation]

Senator Bacon: If I understand correctly, the Commissioner's mandate was extended by special order in 1999 and expanded to allow him to inform the complainant of the results of his investigation.

What criteria does the Commissioner use to determine that a complaint is frivolous, vexatious, without basis or made in bad faith, and that consequently, no investigation of the events that transpired is warranted?

Mr. Bisson: We have not received any formal complaint requiring an investigation since the Commissioner's mandate was expanded in 1999. We do receive quite a number of complaints which occasionally may be deemed frivolous. Occasionally I receive complaints which are not frivolous, but which have nothing to do with my area of responsibility. We inform the complainant that my mandate does not extend to resolving human resources problems, for example. Take the example of a CSE employee who felt he was fired unjustly. Our response to him would be that unfortunately, this does not fall within our domain. Therefore, over the past two years, we have not received any complaints that warrant an investigation, even though the appropriate mechanisms for handling such complaints of this nature are in place.

Senator Bacon: Earlier, I heard you use the words "urgent and priority" in reference to Bill C-36. I am very happy to hear you say this. We have tried to say the same thing to several ministers today, but their responses were different.

You must also determine whether CSE activities are lawful. Yet, you say you have not received any complaints at all.

Mr. Bisson: There are two things we need to consider. For instance, the complaints might originate with a CSE employee. We have not been called upon to examine the legality of an allegedly illegal act. My mandate, pursuant to a government order-in-council, is to determine if CSE is operating lawfully and acting in compliance with Canada's laws. If any violations are noted, I have a duty to report them immediately to the Attorney General of Canada and to the Minister of National Defence.

The various reports submitted to the minister - and these include annual as well as classified reports - have never focussed on any illegal activity carried out within the establishment.

Rather, these reports have focussed on policy and procedural questions.

Senator Bacon: You mentioned an annual report and classified reports. Do you produce many such reports?

Mr. Bisson: We produce approximately four classified reports a year.

Senator Bacon: And these reports are submitted to the minister?

Mr. Bisson: That is correct.

Senator Beaudoin: I am a little perturbed by something. You keep referring to the establishment. You are the CSE Commissioner. Correct?

Mr. Bisson: Yes.

Senator Beaudoin: You receive a complaint and you examine it. Are you authorized to decide whether the complaint is founded or not?

Mr. Bisson: To date, my office has yet to receive any complaints.

Senator Beaudoin: I realize that, but if you were to receive one?

Mr. Bisson: If we determined that the complaint was well-founded and pointed to an illegal act committed by the establishment, then I would report to the Minister of National Defence and to the Attorney General, who are responsible for CSE. It is not necessary for me to receive a complaint in order to act. If, in the course of our policy and operations review, we observe that an illegal act is being committed, our duty is to report that activity immediately.

Senator Beaudoin: This morning, I put the question to the Minister of Justice who responded that there were two systems in place. The Minister of National Defence may authorize CSE to intercept private communications directed at foreign entities. This is stipulated in clause 102 of the bill. If the communications are directed at someone within Canada, if I understood the minister's answer, our Constitution applies, that is to say we go before a judge and obtain a warrant. There are, therefore, two systems, one for foreign entities and one for domestic entities. When the interception is directed at a foreign entitity, the minister issues the authorization. In the case of a domestic entity, current criminal law procedures must be followed, meaning that a warrant is issued by a Superior Court judge. Should called upon to rule on the validity of a complaint, as I understand it, you would have to follow two different systems. Correct?

Mr. Bisson: I would not want to contradict some of the other witnesses who have far more experience than me and who carry considerably more weight, but I will try to explain matters clearly to you.

To date, and until such time as the bill becomes law, the minister has no cause to issue an authorization. CSE operations focus solely on persons outside Canada who are not Canadian citizens. The minister has not been involved thus far. The responsibility of CSE is to ensure that the communications are directed only at foreigners living outside Canada. Under the proposed new legislation, the minister would be able to issue an authorization to intercept communications from foreign entities or non-Canadians residing beyond the country's borders. That is the first stipulation contained in the proposed new section 273.65(2)a) which reads as follows:

...the interception will be directed at foreign entities located outside Canada.

The minister will be called upon to intervene at some point in time because someone in Canada is in contact with this foreign entity located outside Canada.

This is not possible at the present time. The interception must involve communications originating beyond Canada's borders. The minister can then decide, knowing full well that the conditions set out in section 273.65 have been met, that the communications of a specific foreign entity located outside Canada must be intercepted, even if the recipient of these communications is a Canadian living in Canada. The target will not be the Canadian citizen, but rather the foreign entity located outside Canada.

Senator Beaudoin: CSE will be able to intercept private communications?

Mr. Bisson: Yes.

Senator Beaudoin: When dealing with situations here in Canada, you ensure that you operate in compliance with our laws and our system, which is quite effective. Why not follow the same procedure in the case of interceptions directed at foreign entities? I have identified four Supreme Court decisions respecting the interception of private communications. All of them are substantially similar in that they maintain a court order is necessary. Ours is an excellent system which works very well. However, when it comes to intercepting foreign communications, it is not a court order that is required, but rather an executive order. I am having some difficulty understanding why this is the recommended course of action. Why not simply go before the court for an order? That is the law.

Mr. Bisson: One very important provision that you will be asked to vote on is the proposed new section 273.69 which highlights your concerns. Part VI of the Criminal Code respecting the privacy of communications will not apply to these new provisions respecting ministerial authorizations, the reason being that when the minister is convinced that all of the conditions set out in section 273.65 have been met, the most important of which is that the interception be directed at a foreign entity located outside Canada, an authorization can be issued to CSE.

Senator Beaudoin: If the minister can issue the authorization, why then could a judge not do the same thing? Not under the existing legislation, but when the proposed legislation is adopted?

Mr. Bisson: Today, of course, since the act is not yet in force, we could proceed under the Criminal Code, go before a judge and obtain an authorization to intercept the communications of a Canadian citizen. However, the aim of the bill is to facilitate interception, without adversely affecting the privacy rights of Canadians, when the interception is directed at a foreign entity and person outside Canada. Of course, the recipient of the communication that is being intercepted is in Canada. Either the Canadian will be communicating with the foreign entity, or vice versa. The legislator opted for this approach when all of the conditions set out in section 273.65 have been met.

This is the new mandate that has been assigned to my office. The other components of the mandate are already set out in government orders issued from 1996 to 1999. Pursuant to this new mandate, the commissioner has a duty to review and report on the authorizations issued by the minister.

Senator Beaudoin: I understand. It is a matter of choice.

Mr. Bisson: It was a political decision rendered by those tabling the bill.

[English]

Senator Finestone: I must admit that I do not understand one single thing that has been discussed. I would like to know how many did they say, half a million? How many conversations in one month did you evaluate? Did you say that was in the millions? How many did you say?

Ms Weeks: Senator, we took one month in time and examined those transactions, but it took us over a year to do so. Our scope was one month, but the length of the review was much longer.

Senator Finestone: How many did you review during the one-year examination of the one month's traffic?

Ms Weeks: I believe there were in excess of 250,000 transactions. This is not a paper review, senator; it comes up quickly on the screen.

Senator Finestone: I am still not sure what you are doing, but perhaps you could answer my questions. You are collecting electronic information, whether it is coming, as I understand it, from voice, image or text; is that right?

Mr. Bisson: We are not collecting it.

Senator Finestone: You are reviewing. Are you using something that looks at the Carnivore system or the Equinox system, that have key words that identify potential threats or potential security problems? How do you differentiate between a love exchange and a terrorist exchange; could you tell me that? I want to know if these are friends or enemies.

Ms Weeks: Senator Finestone, we are trying to ensure that these communications, both foreign and Canadian, are not being inadvertently intercepted, collected and kept. Our tests involve determining the origin and destination of these communications to ensure that the privacy of Canadians is being safeguarded.

Senator Finestone: Are we only interested in knowing if it is Canadian voice, text, data or image that is being captured? Is that it?

Ms Weeks: That was the purpose of the test, yes, to ensure that the privacy of Canadians is safeguarded.

Senator Finestone: If you find that privacy is not safeguarded, would these people be outside of the parameters of the Privacy Act of Canada?

Ms Weeks: Foreign communications are not protected by the Privacy Act; that is correct.

Senator Fraser: Mr. Bisson, you are probably aware that many parliamentarians have spoken about various possible methods of review of various elements of this bill. You are the first actual reviewer to appear before us.

Given your experience as commissioner, but also your experience as a jurist, I should like to ask you, not for a political opinion, but for a practical and legal view on whether it is possible to have an independent reviewer such as yourself look at some of the elements in this bill, once they are in place, that involve cabinet decisions. I am thinking particularly of the famous lists; the cabinet may make lists of people, groups or organizations suspected of being terrorists. Once you are on that list, your property can be seized. There is a provision to appeal once to a court. However, that hearing can be in camera, and you may not hear all the evidence against you. If the court says you stay on the list, then you are stuck. After that, only the Solicitor General looks at the list every two years, and says, "I think I will keep your name on the list."

My question is: Is it possible, practically or legally speaking, to have someone such as yourself, or a panel of persons such as yourself - retired judges or supernumerary judges, Privy Councillors, people of intellectual and security respectability - that would look at that list once a year or so and say, "Yes, the people on this list are there for good reason, and proper procedures were followed in deciding to put them there"?

Do you see what I am driving at?

Mr. Bisson: Yes, I do. However, senator, you just mentioned that there is a review by a judge.

Senator Fraser: In my view, that is not satisfactory because it is a one-time review.

Mr. Bisson: Having been a judge for 27 years, I would say that is a satisfactory review.

Senator Fraser: I do not know if you have read that provision. The part that bothers me is that first you must apply. If you are an innocent little immigrant who does not speak either official language well, or do not know what is going on, you may not know enough to apply for the review.

Suppose you do apply for the review. The hearing could be held in camera. Neither you nor your counsel is present to hear the evidence against you. You may not receive all the evidence against you; you may get only a summary, if that. That strikes me as less than the normal judicial review in which we would place such faith. You get that only once. After that, you could stay on the list for the next 20 years.

Mr. Bisson: You realize that we are completely outside the scope of my concern.

Senator Fraser: You have all this wonderful experience.

Mr. Bisson: You mention a panel or board that could review it. That is feasible. It is a choice that the legislators must make. It is possible. It could make very good sense.

[Translation]

Senator Joyal: One issue was not addressed by the witnesses when they responded to Senator Beaudoin's question. When it comes to intercepting a conversation between a Canadian and a foreign entity, the Canadian is no longer entitled to the same privacy safeguards as he would be if it were a matter of intercepting a conversation between two Canadians within Canada's borders.

Mr. Bisson: You are quite right. The provisions of section 273.65(d) will henceforth apply. The minister will not issue an authorization unless he is satisfied that proper measures are in place to safeguard the privacy of the Canadian in question. The target is not the Canadian citizen, but rather the foreign entity with whom the Canadian citizen is conversing. The minister has a duty to ensure that mechanisms are in place. This is one of the new powers granted me under the legislation. I will be responsible for carrying out an investigation and a review to determine if the minister properly exercised his discretion when he agreed to authorize the interception of the private communications.

Senator Joyal: Except that you are the person who reviews how the minister exercised his powers. You review the activities, and yet, you also report back to the minister.

Mr. Bisson: That is correct.

The review report is submitted to another authority to ensure that there is an arm's length relationship between the organization conducting the review and the person who has issued the authorization, to ensure that that individual is capable of making an objective decision. The proposed new section 273.65(8) stipulates the following:

[English]

The Commissioner of the Communications Security Establishment shall review...and report annually to the Minister on the review.

[Translation]

You review the minister's decisions, and yet, you also report back to him?

Mr. Bisson: I do not make a value judgement of the minister's decisions or tell him that he has acted inappropriately for whatever reason. However, pursuant to this provision, I can indicate to him in my annual report, or in another report, if necessary, that in a particular instance, not all the required safeguards were in place when the authorization was issued. These mechanisms remain to be determined.

I see where you are going with this. I report to the minister and you will argue that the minister can do whatever he wishes with the report.

Senator Joyal: Precisely. It is not as if you were reporting to the Attorney General of Canada or to the Prime Minister. In Great Britain, your counterpart would report to the Prime Minister, whose authority differs from that of the minister, in this instance the Minister of National Defence. The Prime Minister has the right to be informed and has the ability to judge objectively the minister's decision, under the circumstances, and to ascertain whether privacy safeguards were adequate when a Canadian is involved.

In this particular instance, you review the activities carried out under the minister's authorization and also report back to the same minister. I am somewhat perplexed by this.

Mr. Bisson: Like yourself, I only set eyes on the bill for the very first time last Monday. The aim of this provision is to ensure that the activities carried out under a minister's authorization are lawful.

It is not a matter of the commissioner being asked to make a value judgement of the authorization issued by the minister. Your concern is valid. Perhaps the commissioner should report to someone else in addition to the minister.

Senator Joyal: If you look at Part 6 of the bill on page 129, specifically at the proposed section 5.1, you will note that a Federal Court judge reviews a certificate signed by the Minister of Revenue to ascertain if a charity is violating the provisions of the act. The certificate is referred to a Federal Court judge, an outside authority with the ability to act independently.

I am not worried about your honesty or your probity. However, I am concerned about the fact that tremendous power is being granted to the minister and that the Criminal Code and the actions of a Canadian citizen are at issue, and about the fact that how these special powers are exercised will not be reviewed by an outside body that could at least order a halt to these activities if there was any evidence these powers were being abused.

How these special powers are exercised must be closely monitored, and not merely through some internal management process. I think we both agree on this and if you maintain that this was not done very well, then we will do better the next time. So goes the justice system. I am not holding anything against you. You have served on both the Superior Court and the Court of Appeals. There are different ways of ensuring that each time, an objective opinion is rendered to safeguard the rights of Canadians.

Mr. Bisson: I agree with your assessment of the minister having a tremendous amount of power. The proposed new section 273.69 would set aside Part VI of the Criminal Code which has been in effect for three decades. As for the proposed mechanism, I am satisfied that you will make your position known at meetings of the committee. I do not have the authority to report on the legislation. You have raised a very legitimate concern. There is no question that this power is exorbitant.

This is the first time these provisions have been set aside since Part VI of the Criminal Code was enacted in 1971. A court order would no longer be required. While I am convinced that the reasons behind this decision are valid, care must be taken, however, to ensure that safeguards are in place.

The legislator will consider something other than paragraph 8. I am confident that you will be expressing your concerns and that you will get a better explanation of the true meaning of paragraph 6.

[English]

Senator Beaudoin: Is it exorbitant to set aside what already exists in our system? I cannot ask you that question, I am sure, but what comes to my mind is that 273.69 is possibly ultra vires, at least against the jurisprudence of the Supreme Court on the warrants for interception of private communications.

Mr. Bisson: The only answer I can give is that you are a better constitutionalist than I am.

Senator Murray: I have several questions to which I should know the answer, but do not. Who is the chief of the Communications Security Establishment?

Mr. Bisson: They have had a new chief since August 9, Keith Coulter.

Senator Murray: Is he a military person?

Mr. Bisson: I met him only once, in August, and that was still early in his tenure. Ms Weeks can give you more background.

Ms Weeks: Mr. Coulter, who I believe will be appearing before you, if I am not mistaken, before the week is out, does have a military and a public service background.

Senator Murray: My question was whether he was coming.

The Chairman: Senator Murray, he will be coming with the Minister of National Defence.

Senator Murray: I have another question to which I should know the answer: Are the activities of the CSE subject to review by the Security Intelligence Review Committee?

Mr. Bisson: No.

Senator Murray: You are the review commissioner?

Mr. Bisson: Exactly.

Senator Murray: Your duties are, it says here, to review the activities to ensure they are in compliance with the law, and then, in response to a complaint, to undertake any investigation you consider necessary and to inform the minister and the Attorney General of any activity that may not be in compliance. You are required also to submit an annual report.

The statute under which you operate is the National Defence Act. I do not have the act itself in front of me. I have these amendments. What do these amendments add to your mandate?

Mr. Bisson: Everything is new here. There is nothing in the National Defence Act about the Communications Security Establishment and my function. This was established by Order in Council, as I mentioned in my opening remarks, 55 years ago and has been operating that way ever since.

Senator Murray: Your mandate and all the authorities listed will be found in a statute for the first time?

Mr. Bisson: Yes.

Senator Murray: There is a reference here to the authority of the CSE to protect computer systems and networks of the Government of Canada from mischief by intercepting private communications.

Does that reference to the computer systems or networks of the Government of Canada include also those of the Senate and the House of Commons?

Mr. Bisson: That I would not venture. You do have some privileges. The Government of Canada is not the legislative arm. I just read the words.

Senator Murray: CSE would require some explicit authority before they could touch our networks?

Mr. Bisson: You might put the question to them.

Senator Murray: If you caught them doing it, would you let us know right away?

Mr. Bisson: Yes.

Senator Murray: There are references here to privacy matters in 273.64:

(2) Activities carried out under paragraphs 1(a) and (b)...

(b) shall be subject to measures to protect the privacy of Canadians in the use and retention of intercepted information.

A little later in 273.65 it says:

(2) The Minister may only issue an authorization under subsection (1) if satisfied that

(d) satisfactory measures are in place to protect the privacy of Canadians...

We already have a Privacy Act in this country.

Mr. Bisson: Yes, sir.

Senator Murray: When I see these provisions talking about "measures" and the requirement for the minister to "authorize," I begin to wonder whether these provisions will operate notwithstanding the provisions of the already-existing Privacy Act.

Mr. Bisson: I do not see that that would be the case. The Privacy Act is there. The Privacy Commissioner conducted an audit about five years ago. The CSE is definitely subject to the Privacy Act.

Subparagraph 273.65(2)(d) only applies when the minister authorizes interceptions. The bulk of the work of CSE will continue to operate as it has been operating so far and will be subject to the Privacy Act.

The Privacy Commissioner may decide next year to do another audit, as he did in 1996. The doors will be open, of course. It is not a secluded place that no one can enter. The Auditor General has been there. The Privacy Commissioner has been there. We are there. It is not a place where they do anything they want however they want.

Senator Murray: To your knowledge, is CSE doing anything now that is not covered in these amendments?

Mr. Bisson: No, definitely not.

Senator Murray: Are there guidelines covering the sharing of information, whether on Canadian citizens or on foreigners, with CSE's counterparts in foreign countries?

Mr. Bisson: They definitely do not share information concerning Canadians. They do share information with our partners. We have been partners with the United Kingdom, New Zealand, Australia and the United States for up to 50 years now.

Senator Murray: Have you examined the information that they have passed on to other countries?

Mr. Bisson: Ms Weeks will answer, but we necessarily go into that.

Ms Weeks: The bulk of the communication goes the other way. Most of the communication comes from our allies to us.

Senator Murray: I see. Do you examine any information that we supply to our allies?

Ms Weeks: We have examined that, yes.

Senator Murray: You are satisfied that it is proper?

Ms Weeks: The commissioner expressed his satisfaction, yes.

Senator Murray: Are there guidelines about that?

Ms Weeks: Yes, there are.

Senator Murray: What are they, in general?

Ms Weeks: There are policies and guidelines. There is also now ministerial direction on sharing information.

Senator Murray: In addition to the policy and guidelines, which are presumably ministerial in origin?

Ms Weeks: These are internal policies, but the minister has recently issued ministerial direction.

Senator Murray: Perhaps we will have an opportunity to discuss that.

Mr. Bisson: You may realize that, in the United States, the counterpart of CSE is a huge operation with 22,000 people working in a suburb of Washington. It is called the National Security Agency. Canada benefits a great deal from the information coming from them because they have technical means that we do not.

Senator Murray: Thank you. We can pursue these matters.

Senator Tkachuk: I know that you oversee one part of the act but do not administer this act. Senator Joyal and Senator Murray asked about this clause: The minister authorizes the interception or wiretapping of a conversation between a Canadian and a foreigner.

Mr. Bisson: No. The new legislation is directed at foreign entities. It may happen that there is a Canadian at the other end.

Senator Tkachuk: That is new?

Mr. Bisson: That is completely new.

Senator Tkachuk: Previously, only conversations between two foreign parties could be intercepted. Now, they could intercept a call between Saudi Arabia and Canada, for example, but they would need permission to do that. Right?

Mr. Bisson: They will look first at Saudi Arabia, but as there is a Canadian involved in the interception, the minister will have to give his authorization.

Senator Tkachuk: That is right - "satisfactory measures are in place to protect the privacy of Canadians." Well, their privacy is already being invaded. They are listening to their telephone conversations.

Mr. Bisson: Yes.

Senator Tkachuk: How can he protect the privacy of Canadians when he is already invading it? What if, in that conversation, they hear that Canadian talk about something that is illegal but not terrorist-related? It may have to do with shipping child pornography across borders or some such thing.

Mr. Bisson: We have to read the last part of the sentence, which says that information may only be used or retained if essential to international affairs, defence or security.

Senator Tkachuk: That is a pretty wide scope.

Mr. Bisson: It might not cover the child pornography that you mentioned.

Senator Tkachuk: I do not know what the minister would require. I am having difficulty understanding it. How will you protect me, as a Canadian citizen, if the minister wants to listen to my telephone conversation with someone from Saudi Arabia or Afghanistan whom he thinks is a terrorist?

Mr. Bisson: It is the reverse. They are listening to the foreign entity, but you are at the other end of the line.

Senator Tkachuk: How do they know that I am on the other end of the line?

Mr. Bisson: Through other means, they know that this foreign entity will have communication with a Canadian.

Senator Tkachuk: They overhear it and now they want permission to continue listening to it?

Mr. Bisson: No. They have other reasons for their suspicions. Someone, on behalf of the minister, will present the reasoning for the authorization. Do not expect the minister to sign a blank cheque.

Senator Tkachuk: I am not trying to be difficult. I am just trying to see how you protect Canadian citizens. There are other aspects of this bill that we are concerned about. I am concerned about the ability to eavesdrop on Canadians by simply fulfilling these four criteria. How will you satisfy yourself that the organization that is eavesdropping is protecting the rights of Canadians and ensuring that private communications are only retained if they are essential to international affairs? Once they are eavesdropping on me, they are already invading my privacy. What is there to protect after that?

Mr. Bisson: It will be my duty to ensure that CSE conforms to this clause of the proposed act. In fact, your privacy is invaded, although the communication that is targeted is in a foreign country. There is no doubt about that. However, the minister will not issue an authorization without satisfactory safeguards in place. The minister will probably issue direction to the CSE. We will see how (d) will work out.

Senator Tkachuk: Good luck.

Senator Andreychuk: Is the position of Commissioner of the Communications Security Establishment that you hold still filled on a term-by-term basis? It is not part of our law per se on an ongoing basis?

Mr. Bisson: The office is continued. There is a provision that says that the person holding the office, or the office, is continued. That is found in 273.62 (7).

Senator Andreychuk: Leaving aside Bill C-36, it is my understanding from a previous committee on which I sat that the review function was not entrenched, that the government could cancel that review function.

Mr. Bisson: You are perfectly right. I was first appointed for three years by an Order in Council in June 1996. The government might have decided in June 1999 that that was the end of it. However, now it will be legislated, as I have been requesting for years.

Senator Andreychuk: Bill C-36 legislates your office. That is one advantage.

Mr. Bisson: Exactly. Not for me, but for the public of Canada.

Senator Andreychuk: Exactly. It has not been an office upon which we could rely, as we could SIRC, which was in legislation.

Mr. Bisson: Yes.

Senator Andreychuk: As I understand it, currently, if someone complains to you and you investigate the complaint, your report goes only to the minister and the complainant never knows the outcome.

Mr. Bisson: That has not been the case since 1999. When I was given a new mandate for three years in 1999, I was expressly given the power to report to the complainant.

Senator Andreychuk: Do you give them a full report, or do you just give them the decision?

Mr. Bisson: As I mentioned earlier, I have not yet taken a complaint through the full process. When I do report to a complainant, I will probably give the reasoning behind the decision of "complaint dismissed" or "complaint well-founded."

Senator Andreychuk: Since 1999, you have not had to move on a complaint?

Mr. Bisson: No.

Senator Andreychuk: You said earlier that you reviewed all of the transmissions for one month. I understood you to say that throughout your entire mandate, there have been no violations. If a communication is accidentally improperly intercepted and, upon realization of that, the information is destroyed, you do not call that an unlawful transaction? If it is corrected, you do not call it invalid?

Mr. Bisson: If a Canadian communication is intercepted by accident and immediately destroyed, there is no violation.

Senator Andreychuk: There were in fact transmissions that were in violation, but they were corrected to your satisfaction?

Mr. Bisson: Yes. As I have said, there are an immense number of communications and there are many ways that a Canadian communication can be mistakenly intercepted.

As Ms Weeks mentioned, that is the purpose of the defeat mechanism. A communication involving Canadians will disappear. There may be mistakes from time to time. CSE does not pretend that the communication of a Canadian has never been intercepted. However, there are policies in place to ensure the disposal of these communications.

Senator Tkachuk: Mr. Bisson, I would feel much more comfortable if you were reporting to Parliament rather than to the minister. If you report to the minister, you say, "You know, minister, we have a little problem here. I think when you signed a couple of these things, it got a little out of hand and we were listening to a bunch of things that we should not have been listening to."

I do not know if the minister is your friend. You are an OC appointment. He could be your friend. We know how these things work. I am not saying in your case it did. You are a well-respected jurist. However, maybe it will not be you. You may not be here forever. It will be somebody else. It may be a close friend of the minister, and the minister says, "You know, just kind of bury that in the report." Or maybe the OC is cancelled. Now what happens?

Mr. Bisson: I do not think any minister would dare do that.

Senator Tkachuk: I do not know that. I am just saying you do not report to Parliament. You report to the same people who do this stuff.

Mr. Bisson: Yes.

Senator Tkachuk: After that, the only thing you can do is write in your report that the minister did not listen to you, and I am just saying good luck to that, too.

Mr. Bisson: As I mentioned, if there is anything illegal being done - but you do not assume that it is illegal - I have a duty to report to the Attorney General. Let us assume that it is not illegal.

Senator Tkachuk: The same person who authorized it, the Attorney General, would have authorized this.

Mr. Bisson: No, the Attorney General does not -

Senator Tkachuk: I am just asking you, would you feel better reporting to Parliament? Would you not think that would be a better, clearer process?

Mr. Bisson: I already report to Parliament annually. My annual report is public. As I mentioned, I issue a classified report to the minister. Some have been obtained through the Access to Information Act, with deletions. Reporting to Parliament is fine, but there should be a mechanism for a classified report to someone.

[Translation]

Senator Fraser: In response to a question from Senator Joyal, you stated earlier that a part of the bill granted exorbitant powers. To which part of the bill were you referring?

Mr. Bisson: I was referring to the proposed new section 273.69. Part VI of the Criminal Code has been in effect for the past 30 years. That an action such as this would not be subject to the provisions of the Criminal Code is extreme.

Senator Fraser: I agree.

Mr. Bisson: I do not think anyone would disagree with this contention.

Senator Fraser: Would you equate extreme with excessive?

Mr. Bisson: No, by extreme I mean out of the ordinary.

Senator Fraser: Would you say it was very unusual?

Mr. Bisson: Yes, very unusual. Unless I am mistaken, this is the first time certain activities will not be subject to Criminal Code provisions. As Senator Beaudoin pointed out, the standard procedure in the past was to seek a court order. It may not be excessive, but it is certainly not standard procedure. This safeguard has been in place since 1971.

[English]

Senator Kenny: With respect to the exchange of information with allies who have the capacity to listen electronically, could you give us some general outline of the policies and guidelines that govern that exchange?

Mr. Bisson: The main feature is that the partner will not collect interceptions that CSE could not collect. We cannot tell the United States we are prevented from collecting communications between Canadians and ask them to do it for us. Ms Weeks could elaborate on that, but that is the most important feature.

Senator Kenny: I have heard that it is the other way around - and perhaps you could comment on it - that we have passed information to other agencies that we could not deal with and given it to them to handle and analyze.

Mr. Bisson: Definitely not true.

Senator Kenny: How do you know that, sir?

Mr. Bisson: If you are asking me, have I been there every day to see if we have passed information to the United States about American citizens, the answer is no. However, the policy is there is no collecting of information by any of the partner countries that would intercept communications of people from any of those countries. We do not do it in Canada. They do not do it in the United States, New Zealand, Australia or the United Kingdom.

Senator Kenny: I was suggesting information collected on Canadians might be passed to the Americans, as an example, so they could analyze it and make use of it, although we could not do so under the current provisions.

Ms Weeks: There are two international conventions that have existed since the creation of these agencies. One is, they do not collect on behalf of one another, and secondly, they do not use each other to collect information that it would be unlawful to collect in their own countries. It is established by convention. It is their modus vivendi, and is at the root of their policies.

Senator Kenny: How do you verify it?

Ms Weeks: We saw no evidence in any of our testing that this was going on, and at the end of the day, when you are dealing with policies you have verified with international partners at review agency meetings, you have to take some of this stuff at face value.

[Translation]

Senator Joyal: Mr. Bisson, when a person's constitutional right to privacy is violated, normally provision must be made for a mechanism whereby the person can seek reparation under our system of law, which is based on the rule of law.

As I continue to read through the bill, there is one thing that concerns me about this provision. At the top of page 125, the following is noted:

The Attorney General of Canada may at any time personally issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security.

Last week, the Privacy Commissioner drew the Canadian public's attention to these two provisions. If we read them along with the earlier provisions, theoretically speaking, a Canadian who finds himself in a situation where he is not protected by a judicial authorization cannot protect himself either from a situation where his privacy would be invaded without reason. All the Attorney General would need to do is issue a certificate, in accordance with clauses 103 and 104 of the bill. The ability of the Canadian to safeguard his right to privacy is therefore denied. Do these two provisions not violate section 7 of the Canadian Charter of Rights and Freedoms?

Mr. Bisson: I will confine myself to the clauses that relate to my mandate. Take the hypothetical case of the Canadian who complains that his privacy has been unduly violated as a result of the authorization issued by the minister. I can allow the complaint and I will investigate based on the evidence adduced to me. I fail to see how clause 103 would interact with the provisions respecting the Communications Security Establishment.

Senator Joyal: You carry out an investigation and come to the conclusion that the privacy of a citizen has been unduly violated. The person decides to seek reparation. All the Attorney General of Canada would need to do is issue a certificate, pursuant to the authority granted him by clause 104, on the grounds that this information is vital to Canada's security, defence and international relations. To all intents and purposes, because of the additional powers granted to the Attorney General of Canada, the Canadian citizen is denied the opportunity to assert his rights.

Mr. Bisson: I would not want to comment on provisions with which I have not yet familiarized myself. I am unclear as to the actual scope of clauses 103 and 104 and as to whether they carry the weight you seem to think they do. The Attorney General of Canada may issue a certificate to prohibit the disclosure of information, but he cannot prevent a citizen from filing a complaint...

Senator Joyal: That is not what I am saying. That is not what the Privacy Commissioner said.

Mr. Bisson: I prefer not to comment because I have not examined these provisions over the course of the past week.

[English]

The Chairman: We have a final word from Senator Beaudoin.

Senator Beaudoin: The question is simple. It is on section 24 of the Charter.

[Translation]

And I quote:

Anyone whose rights or freedoms as guaranteed by this Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

So states the Charter, which is part of the Constitution, a document of greater importance than a bill.

The Canadian citizen could very well challenge this decision in court, since I must conclude that section 24 of the Charter does apply. This is patently clear to me. Clauses 103 and 104 are interesting and important, but they are part of a bill, not part of the Constitution. And it is clear to me that the Constitution takes precedence in this case.

[English]

Senator Joyal: It would benefit the members of this committee to read last week's press release from the Privacy Commissioner. The commissioner specifically raised that question of 103 and 104 in relation to the protection of privacy.

Senator Beaudoin: He is coming before us and we will ask him the same question.

The Chairman: I should like to thank the witnesses for being here tonight. This has been a new topic of conversation for a parliamentary committee and we are pleased you took the time to come.

The committee adjourned.