Proceedings of the Standing Senate Committee on
National Security and Defence
Issue 1 - Evidence - Meeting of December 9, 2013
OTTAWA, Monday, December 9, 2013
The Standing Senate Committee on National Security and Defence met this day at 4 p.m. to examine and report on Canada's national security and defence policies, practices, circumstances and capabilities (topics: follow-up to the committee's report on the reserves and on sovereignty and security in the Arctic; and review of Canadian security intelligence-related services).
Senator Daniel Lang (Chair) in the chair.
[English]
The Chair: I'd like to call this meeting to order. I'd like to welcome you to the Standing Senate Committee on National Security and Defence for Monday, December 9, 2013. Before we welcome our witnesses, I would like to begin by introducing the people around the table. My name is Daniel Lang, senator for Yukon. This is the clerk of the committee, Josée Thérien, and our Library of Parliament analysts assigned to the committee, Holly Porteous and Wolfgang Koerner.
I'd like to go around the table and invite the senators to introduce themselves and state the region they represent, starting with the deputy chair.
[Translation]
Senator Dallaire: Thank you, Mr. Chair. Senator Dallaire, senatorial designation, Quebec (Gulf).
[English]
Senator Mitchell: Grant Mitchell, Alberta.
Senator Watt: Senator Watt from Nunavik.
Senator Day: Senator Joseph Day from the town of Hampton, New Brunswick.
[Translation]
Senator Nolin: Pierre Claude Nolin, province of Quebec.
[English]
Senator Segal: Hugh Segal from Kingston-Frontenac-Leeds, Ontario.
[Translation]
Senator Dagenais: Senator Dagenais, Terrebonne-Blainville riding, Quebec.
[English]
Senator Stewart Olsen: Carolyn Stewart Olsen from New Brunswick.
Senator Wells: David Wells from Newfoundland and Labrador.
The Chair: Today the committee will continue to review its previous report on sovereignty and security in Canada's Arctic, which was released in March 2011. In that report, the committee made six recommendations. One is that the government make speedy acquisition of new fixed-wing search and rescue aircraft the top military procurements priority and that the target dates for the program be published. Two, the government should keep the Canadian Rangers modernization program on track, with consideration given to expanding the Rangers' role in the marine environment. The program should be completed sooner rather than later.
The third recommendation is that the government ensure procurement of the polar icebreaker CCGS John G. Diefenbaker by the end of 2017, which is the year the Canadian Coast Guard says the ship is expected to enter service. Four, the government should reallocate existing Canadian Hydrographic Service funds so more work can be done on a high-priority basis to upgrade existing Arctic marine navigational charts and create new ones in high-risk areas. Five, the government should take steps to create an Arctic pilotage program whose ultimate purpose will be to acquire the commercial marine vessels in the Arctic and carry pilots in areas that normally require the use of pilots in narrow passages where navigation is complicated by reefs and shallows or on approaches to and from harbours. The sixth recommendation is that the government, in order to reduce search and rescue response times in the Arctic, position Canadian Forces SAR assets at a central location in the North such there is always an aircraft on standby, as in the South, to respond quickly to emergency calls.
To update the committee with the information that we've been provided so that we can carry on a worthwhile debate here, to date there appears to be some progress on some of the recommendations, but obviously maybe not as fast as we'd like.
A draft request for proposals for fixed-wing search and rescue replacement aircraft was issued for industry comments by Public Works and Government Services in August 2013, with an anticipated date of early 2014 for issuance of the final version. During the Prime Minister's eighth annual northern tour this past summer, he indicated that as of August 2013 there were more than 5,000 Rangers in 178 patrols, a 25 per cent increase since 2007. The press release went on to say that the Rangers are also evolving their technological capabilities, including through the use of electronic tracking and digital imagery equipment and — Senator Mitchell you'll be happy to hear this — the Ranger Lee Enfield rifles will be replaced with new ruggedized 7.62 mm bolt action rifles scheduled for delivery in 2016. No mention was made of the Canadian Rangers on water, a special recommendation of the report. Further, with regard to ship service in Canada's Arctic, it's expected that the John G. Diefenbaker polar icebreaker will enter service in 2021 or 2022, a few years later than expected and, from what is projected, obviously at a much higher cost.
I would first like to say that we're very pleased to have our guests with us. We only have an hour, so I would like to limit each member to one question per round so that everybody gets an opportunity to ask a question. And I would also ask that not only our questions get to the point but also that the witnesses get to the answer as quickly as they possibly can so we can make best use of the hour we have ahead of us.
I'd like to introduce Major-General Christopher Coates, Deputy Commander (Continental), Canadian Joint Operations Command; Brigadier-General K.L. Woiden, Chief of Staff Army Reserve; and Colonel Michel Lalumière, Special Advisor to Commander Canadian Joint Operations Command.
Gentlemen, welcome. I understand you have an opening statement. Please proceed.
Major-General Christopher Coates, Deputy Commander (Continental), Canadian Joint Operations Command, National Defence and the Canadian Armed Forces: Thank you very much, Senator Lang. Mr. Chair, members of the committee, it's a pleasure to be here. I'm accompanied today by Brigadier-General Woiden, Chief of Staff Army Reserve, of which the Canadian Ranger program is a part. I'm also accompanied by Colonel Michel Lalumière, Special Advisor to Commander Canadian Joint Operations Command on search and rescue.
I'm here today to talk about the Canadian Armed Forces' role in the Arctic with regards to sovereignty and security.
As Deputy Commander (Continental) for the Canadian Joint Operations Command, or CJOC, I'm responsible for the Canadian Armed Forces' operations and activities in the Arctic. CJOC Commander Lieutenant-General Stuart Beare is focused on ensuring that as a command we meet our goals in the Arctic.
[Translation]
As you know, the Arctic is a priority for the government. Although the Canadian Armed Forces very often play a support role with our partners, we work together to ensure that the priorities of the Government of Canada are implemented.
[English]
As you know, the Department of National Defence and the Canadian Armed Forces are not the lead when it comes to northern affairs. However, we contribute to all four pillars of Canada's Northern Strategy, with a primary emphasis on the first pillar, exercising Canada's sovereignty.
We do not see a military threat in the North, nor is one likely to develop in the foreseeable future. For that reason, the role of the Canadian Armed Forces in the region remains limited primarily to providing a military presence, conducting surveillance and search and rescue operations and supporting other government departments and agencies as required.
Under the umbrella of the Canadian Joint Operations Command, we have six regional task forces that cover the vast territory of our nation. For the North, we have Joint Task Force North, or JTFN, based in Yellowknife with detachments in Whitehorse and Iqaluit. JTFN is responsible for conducting routine and contingency operations in the North. It also contributes to the growth and development of the people in the North, namely through the Canadian Rangers and Junior Canadian Rangers programs. Joint Task Force North works with other federal government departments and local partners, such as the Aboriginal communities and the governments of the three territories, to build the collective capability to respond rapidly and effectively to emergencies, such as natural and man-made disasters and contributing to search and rescue operations. In doing so, JTFN coordinates and supports Canadian Armed Forces' activity in the North and provides liaison with the territorial governments and peoples of the Northwest Territories, Yukon and Nunavut.
The Canadian Armed Forces, through the Canadian Rangers, play a key role in demonstrating a visible presence and exercising Canada's sovereignty in the region. They are experts in operating in the extreme Arctic conditions. Leveraging their unique skills, local knowledge and heritage, they conduct surveillance and sovereignty patrols, report unusual activity and collect local data of significance to the Canadian Armed Forces. This year, the number of Canadian Rangers reached 5,000, a significant milestone. Our Rangers are the eyes and ears of the Canadian Armed Forces and they are very good at it. The Canadian Rangers also assist Canadian Armed Forces activities by providing local expertise, guidance and advice during operations and exercises, conducting North Warning System patrols and providing local assistance to search and rescue activities.
As armed forces of an Arctic country, we have to make sure that we have the capabilities to efficiently operate in every corner of our territory. Here are two examples of some of the activities we do. This past August we inaugurated the Canadian Armed Forces Arctic Training Centre in Resolute Bay, Nunavut. This centre, developed with our partners at Natural Resources Canada, is a state-of-the-art multi-purpose military training facility for Arctic and cold weather training. It's not only a training centre, as it can also serve as a forward operating base, if required.
We have the Canadian Forces Station Alert on Ellesmere Island, Nunavut, which is the most northern permanently inhabited location in the world. CFS Alert falls under the command of the air force through 8 Wing Trenton. CFS Alert's primary responsibility is to maintain signals intelligence facilities in support of Canadian military operations. CFS Alert also maintains a geo-location capability to support operations, as well as high-frequency and direction- finding facilities to support search and rescue and other operations, and it provides support to Environment Canada and Arctic researchers.
These are just a few examples of what we do and how we will operate in the Arctic environment.
[Translation]
Again in my role as deputy commander for continental operations, I also lead sovereignty operations in the Canadian North.
[English]
We have three significant sovereignty operations that are conducted each year: Operation NUNALIVUT, Operation NUNAKPUT and Operation NANOOK. While the objectives of each operation differ, they all share the same purpose: to exercise Canada's sovereignty in the region, to advance the Canadian Armed Forces capabilities, and to improve coordination with partners and stakeholders in response to Northern sovereignty and security issues.
For Operation NUNALIVUT, we focus on enhancing Ranger sovereignty patrols. This operation employs the unique capabilities of the Canadian Rangers to support JTFN operations in the extreme environment of the High Arctic. Ranger snowmobile patrols constitute one such capability and provide a significant, rapid-response capacity in some of the most remote areas of the North.
Each summer, we also conduct Operation NUNAKPUT in the western Arctic along with the Canadian Coast Guard and the Royal Canadian Mounted Police. The aim of this important operation is to exercise sovereignty and practise interoperability, focusing on the Mackenzie River region.
Last but certainly not least, Operation NANOOK is an annual joint, interdepartmental sovereignty operation conducted in the Arctic. This is our flag operation in the North, our largest annual operation with the participation of the navy, army, air force and whole-of-government partners. Operation NANOOK focuses on interoperability, command and control, and cooperation with interdepartmental and intergovernmental partners in the North.
[Translation]
Search and rescue operations are a critical aspect of the Canadian Armed Forces' role in the North.
[English]
Working within the coordinated national aeronautical and maritime search and rescue structure, the Canadian Armed Forces and the Canadian Coast Guard provide an effective search and rescue response capability in Canada's North, using all available assets.
It's important to note that the Canadian Armed Forces are just one component of the federal SAR system. Within the CAF, the Joint Rescue Coordination Centres, or JRCCs, respond to more than 9,400 incidents annually. Of those incidents, a yearly average of 182 occur north of the fifty-fifth parallel. On average, we conduct 42 SAR missions each year for that region. These cases are under the auspices of the CJOC, with the Royal Canadian Air Force supporting search and rescue in three regions, each named for the location of their JRCCs: Victoria, Trenton and Halifax.
In conclusion, the Department of National Defence and the Canadian Armed Forces continue to work in close collaboration with other departments, local partners, Aboriginal communities, the governments of the three territories, municipal governments, and federal government departments and agencies to ensure that the Government of Canada meets its goals in the Arctic. This is a collaborative approach, and we help them as much as they help us.
The Canada First Defence Strategy is very clear when it comes to the Arctic and the role that the Canadian Armed Forces should be playing. Exercising sovereignty is what we do and is what we will continue to do.
It will be a pleasure to respond to any questions you may have. Thank you for your time.
The Chair: Thank you very much.
Being a senator who represents one of the regions of the Arctic, perhaps I could take the prerogative and ask the first question. I'd like to refer to the question of sovereignty. As we know, the United States Department of Defense has just released its new Arctic strategy, which I'm sure you're familiar with, which emphasizes a cooperative approach with regional stakeholders but also asserts the U.S.'s intention to exercise its sovereignty. Secretary of Defense Chuck Hagel — and I believe it's important to quote him — has said:
We will remain prepared to detect, deter, prevent and defeat threats to our homeland and we will continue to exercise U.S. sovereignty in and around Alaska.
The Minister of National Defence, Rob Nicolson, has stated that he views the U.S. strategy as consistent with Canada's approach.
In view of what's been in the news lately in respect of our claim to the Arctic, and given that Russia has 16 deepwater ports along its Arctic shoreline, numerous search and rescue stations, with plans to build more, and a 15- ship icebreaker fleet that is about to be expanded, can you tell us what our capacity is to effectively exercise sovereignty in light of the geopolitical and military positioning of the Russians in the Arctic? Perhaps you could comment on that.
Maj.-Gen. Coates: Mr. Chair, thank you very much for the question. Your 2011 report commenced with a description of sovereignty, and I think it's important to recognize that the Canadian Armed Forces aren't the only vehicle for exercising sovereignty in our North. We are one of, but not the only, department of government that does that.
So this is sort of in two parts. The first is that the Canadian Armed Forces exercises sovereignty in the North through our presence, reconnaissance and surveillance and through maintaining an awareness of what's going on in the North, which we do with our partners. Like I said, it is through our presence, whether that is through Ranger patrols or habitual operations that we conduct in the North. Depending on where you want to go, we can further pursue what those are.
In addition, the other half is our support to our other government departments, which in themselves exercise the sovereignty of the Canadian government in the North, whether that's the Coast Guard, the RCMP, Environment Canada or the Canada Border Services Agency — those other government departments we partner with. In order that they're able to exercise their functions in the North, the Canadian Armed Forces are often called to assist them through the various capabilities that we can easily bring to bear in the North, perhaps much more easily than some other departments.
So, yes, I think our approach to sovereignty is relevant and effective, given the global situation, both through our own actions and the support of the other departments.
Senator Dallaire: Gentlemen, you started by saying that there's no threat, yet the Americans, as was stated by our chair, do see a threat, and they're going to be prepared for it. I'm wondering how we don't have a threat analysis seemingly coming to the fore, which brings me to the specifics of my question: As everyone is coordinating and cooperating with everyone else, while things are going reasonably well, who runs the show up there? Who in the federal government has the overriding authority for command and control of all operations from the different federal departments, which have to work with the three regional authorities, of course? Is there one body or agency that is the overall authority for all matters North and has itself a specific influence in the federal government to be that porte- parole?
Maj.-Gen. Coates: Senator, that's an interesting question. Of course, there is not one spokesperson who is responsible for everything in the North. You would all appreciate better than I that various responsibilities lie at various levels and are assigned to various departments.
But to achieve the coordination that's so necessary, especially in an area like the Arctic where cooperation is key due to the dependencies that exist, I would point to, for example, the Arctic Security Working Group, which was started by Joint Task Force North about 13 years ago — a little bit more than that, about 16 years ago — in the North. I attended their most recent meeting. They bring in stakeholders from around the North — federal, territorial and Aboriginal communities — to meet and discuss matters of security and safety, all of mutual interest, and to help iron out, perhaps, some of the responsibilities that you just alluded to.
It's perhaps not a system that provides one person in charge of everything, but it's certainly an effective way to bring together all of the various stakeholders, so that each understands the other and helps us arrive at the best solution possible.
Senator Wells: I'm from Newfoundland and Labrador, as I stated earlier. It seems that search and rescue and response times are common themes that run throughout our province, whether it's offshore oil and gas, fisheries or folks who might be lost in the interior.
It's going to be an open-ended question, but could you talk to me about the response times, given such a vast area of the North and the three centres that were noted in your opening remarks? Could you tell me about the response times with respect to not just the vast geography but the fact that it's a very harsh place to operate anyway, not only for search and rescue but for the person who needs to be found and rescued? Are the response times different at different times of the year? How is that operationalized?
Maj.-Gen. Coates: I'll try to give it my best shot, but, as you said, it's an open-ended question. I may ask Colonel Lalumière if he has additional comments at the end.
In terms of response time, I think we could look at a couple of aspects. The first is how quickly we are out of the gate in order to respond. I think the Auditor General's recent report and our own statistics indicate that we're pretty good at that. We traditionally are about half the time that we're mandated to have our assets flowing; we do so.
That's one half of the response time question. The other would be how quickly you can bring assets to bear in the area of interest. Of course, that's a function of many different elements: the distance, the weather, what the actual assets are.
The Canadian Armed Forces are responsible for aeronautical response, and we're responsible with the Coast Guard for coordination of aeronautical and maritime search and rescue. The territories in the North, much as the provinces in the South, are responsible for provision of and coordination of ground search and rescue. So the situation would depend on whether it's an aeronautical or a maritime SAR or a ground SAR.
Certainly from an our nautical perspective, we'll use the asset that is closest and can respond the quickest, and that may be in order to get around weather that's in the way or direct flight if there is no weather. We have systems in place to harness the capability of local civilian and private assets through the Civil Air Search and Rescue Association, or CASARA, where we've just established two new units, one at Pond Inlet and another one — I'll remember the second one in a moment; it's lost in thought. Those are two new CASARA units in the North in order to provide a quicker response if needed.
You didn't ask, but implicit in your question, of course, is whether there would be a better configuration of aircraft or assets to respond. I think a lot of work has gone into ensuring that the aircraft are best positioned at the moment for the majority of the situations to which they must respond.
Senator Wells: Just a short follow-up. Where does the chain of command end in giving direction — I won't say permission — giving direction to utilize some assets to help in a search and rescue when requested? Does that happen at the JRCC in the region?
Maj.-Gen. Coates: The JRCCs have authority for certain assets that are assigned to them. There's a coordination that can occur between two JRCCs. My boss and I are the arbitrators if there's a difference in approach between two JRCCs. We could also get involved through the 1 Canadian Air Division in Winnipeg in recruiting other air force assets that may be elsewhere but not directly part of the SAR system.
Colonel Michel Lalumière, Special Advisor to Commander Canadian Joint Operations Command, National Defence and the Canadian Armed Forces: Very good question, sir. The North is slightly different than the rest of Canada for so many reasons that you started to describe.
Sure enough, the Canadian Armed Forces is only one agency of a whole system that will look after a potential search and rescue case. The way we are very much looking for the reports at the end of any action starts all the way from the actual event itself. The first phase is very flexible: the alerting. The alerting in the North is quite different than alerting one hour from Kingston, let's say, near Trenton or Montreal or Quebec City or even St. John's.
Very much in the culture of the North, they've not been living with the same communication means as maybe other, highly populated areas have been used to. So for them, a pilot flying up there on an open flight note rather than on a flight plan is not uncommon. Unless they've got a rigid protocol with their own company, normally they would have an open-ended flight, which means, ``If I don't get back to you within 48 hours, please initiate a search,'' which normally will be done by the community, and then eventually it will make its way to the RCMP and many different paths before the JRCC is called. Then the investigative phase starts. The JRCC controller, depending on how much information is available at the time, will try to fill that void before necessarily engaging the asset of last resort, which is the Canadian Armed Forces, being a fixed-wing plane most of the time.
The whole response posture from the actual event can easily be within days right off the bat from the event itself, unless you have a mayday call from a flyer or a maritime vessel that is a catastrophic event — they were in communication and were able to make a mayday call, and that would initiate the machinery a lot quicker.
This is what we've been looking at. By engaging CASARA, which General Coates has been describing, they are in many ways filling this communication network that we've been becoming used to in the rest of Canada. So they are filling this area.
By being able to communicate and having the networks right there on the ground, CASARA is able to shorten that information path, but also, we're looking at communication means, period — so how the North can better utilize the communication means that we have available right now, or if not right now, on the near horizon, with the satellite technology that's being considered by so many agencies.
This is how we look at the whole response time for the North: Transit time is slightly higher, sure enough, maybe by distances, but the front end can be much longer, and we're easily talking about days. On the other hand, the culture up North is such that most of the time our success rate going up to the North is higher than, let's say, in British Columbia, which was my last posting.
People are prepared. On the preparedness scale, in the North, northern Quebec, northern Ontario, Nunavut, Northwest Territories, these people are prepared. They've seen it before. They've probably lived it themselves on a couple of occasions. Most of the time when we get there, they had the proper knowledge, experience, material and even means to signal us when we're there and even shorten that search period.
When we are proceeding up North, it is in that light that we are considering it, all the way from the controller to the operators.
Senator Watt: In regard to Arctic capacity to do the work in the area, I do understand it's not an easy area for the Armed Forces to work in and carry out their responsibilities in, given the actual hardware needs of the Arctic, to put themselves in the position to be able to take care of whatever might be coming down the pike — and not only for military purposes; there could very well be a disaster that could arise out of the activities in the Arctic.
From your perspective, from a military perspective — I'm not talking about whether we are being threatened, but mainly about the fact that the North is not an easy area to work in. When it comes down to the possibility of an oil spill during the drilling, as you know, the ice is gradually disappearing, but it is not going to disappear that quickly. We all know that. Are we equipped in the same way as Russia is moving toward equipping themselves to deal with the Arctic, if a large amount of activity will be taking place in the region? From your perspective, are we equipped? Let me just give you an open-ended question on that.
Maj.-Gen. Coates: Sir, first, we're not responsible as the lead agency to respond to an oil spill. So I'll assume that your question wasn't oriented directly to oil spills. I believe that's a Coast Guard responsibility.
Senator Watt: Looking at it from a military perspective.
Maj.-Gen. Coates: From a military perspective, then, your question is whether we are prepared to deal with an increase of activity in the North. More or less and I would say yes, we are. We've increased our in-location capacity at Joint Task Force North over the last two years and plan to increase it again over the next two years in terms of both the sustained in the North — the ability to keep Canadian Armed Forces operating in the North — as well as their oversight of ongoing activities through their operations centre, which they are now able to run 24 hours a day, 7 days a week. That is new from your previous report.
In terms of the navy, they're looking forward to being able to provide the Arctic offshore patrol ships in order to support CJOC operations in the North. From my perspective as the overseer of operations, I understand that the navy is now working together to determine what the procedures are that they are going to use when the AOPSs come online, so they will be prepared for that. There are already ongoing discussions between the Maritime Component Commander in Halifax and the commander in Yellowknife in order to ensure they are ahead of that operational capability when it arrives and they can employ it well.
Our air force has implemented a campaign plan for the Arctic to ensure that they know how to operate everywhere all the time.
Our army, and maybe I'll ask Brigadier-General Woiden to explain in a moment, has very much expanded its activities in the Arctic, north of 60, whether that is through the Arctic training centre, the establishment of the Arctic Response Company Groups, increased Arctic training for the immediate response units. Certainly in terms of our ability to be prepared to support other government departments, we're on a positive vector. We've come a long way, I believe, since the time of your last report and we continue to move in a very positive direction.
An awful lot of energy is being applied and effectively so, even our series of northern exercises. Now we have our partners in the North, the other federal departments and the territories, coming to us to try to be part of those exercises because they understand there's an awful lot to be gained from that. Brigadier-General Woiden, do you have any comments on the army's preparedness for the North?
Brigadier-General K.L. Woiden, Chief of Staff Army Reserve, National Defence and the Canadian Armed Forces: Absolutely. I think we have seen, specifically in the last three years, almost a tripling in the amount of training from the North, north of 55 and onwards into the Arctic.
As Major-General Coates was saying, we have expanded. And actually now at IOC, and very close in some cases, we are going to full operating capability, with IOC as the initial capabilities of the Arctic Response Company Groups, which we have talked about before. There are four of those, one in each of the divisions. These are southern troops that are in position to go out and conduct operations in the Arctic and have the mandate to do so. They have the mandate for one to two of the Arctic Response Company Groups to go up per year up to the Canadian Armed Forces Arctic Training Centre. We will start to see that coming on board in 2014.
The Canadian Forces Arctic Training Centre itself is now becoming the hub. It stood up this last summer in a very short period of time, which is a success story. In fact, just by the expanding capability of that facility from warehousing to being able to house, equip and sustain quite a number of soldiers and troops and the Arctic Operations Advisor Course that is done, all of those are going on now, synchronized to the Arctic Response Company Groups coming up as well the immediate response units from each of the divisions that are rotating up there at the same time.
The Yellowknife Company, a reserve unit, a company minus now at a platoon plus size organization, is a company of the Loyal Edmonton Regiment out of Edmonton. That is now at IOC and continuing on. The Canadian Rangers expansion activities from 4,000 to 5,000 troops have been talked to, up to 179 patrols. We are now in the realignment phase to ensure we have the right folks in the right places.
We have done a lot, and I would mention that the army's capability development process is contained in a document called Northern Approaches: the Army Arctic Concept 2021 and I will leave a copy of this for you. It is a recently published document but it has been about two years in the works. It is based on the Canada First Defence Strategy and it really defines the capability development process that the army is taking to meet up the requirements for remits for the Canada First Defence Strategy.
[Translation]
Senator Nolin: Thank you for being here with us today. At our committee meetings, we have had a lot of discussion about the possible use of drones in the Arctic. One of my concerns that I would like to share with you is the possibility of joining JUSTAS — the Joint Uninhabited Surveillance and Target Acquisition System — and using the data collected from RADARSAT through the Polar Epsilon program. My first question is this: what is the current status of the JUSTAS program?
MGen Coates: Thank you for the question. My position is with the Canadian Joint Operations Command, which is not responsible for procuring programs such as JUSTAS. I would think that the question goes more appropriately to PWGCS or the ADM(Mat). Unfortunately, I cannot talk about the current procurement status of the system.
Senator Nolin: So let me ask my second question: is it possible to use those two assets? Is it too soon? Is the answer no?
MGen Coates: That will depend entirely on the capacity of the aircraft to meet the needs of the JUSTAS program. If a drone can operate in the North, I have no doubt that it could take advantage of all the data from RADARSAT or from RADARSAT Constellation, which will be the next evolution. After having seen the RADARSAT system work two weeks ago, and the way in which the data reaches us, I would be very comfortable incorporating it into a drone system.
Senator Nolin: Knowing the areas. That is important to know.
MGen Coates: Absolutely.
Senator Mitchell: Thank you for being here, general.
[English]
I was struck by a report today that the Canadian application to the United Nations on the limits of the continental shelf process didn't include really complete information about the continental shelf in particular. It was surprising that that would be so important to us and we wouldn't have done the proper scientific study over a 10-year period.
With that as context, do your consistent habitual manoeuvres incorporate the North Pole specifically to assist in establishing presence that far north?
Maj.-Gen. Coates: No, sir. The Canadian Joint Operations Command is responsible for operations on land and in our territorial waters, which at the moment extend only 12 miles from shore, obviously. And we conduct air observations such as surveillance and the patrols of the CP-140 over our North, and there are two to three per month.
Then during summer periods, there's a contracted service that we also use. And there are about 10 flights a month during the summer months, but they're limited to areas more southerly than the North Pole itself. The North Pole is 817 kilometres north of Alert. That's a long ways. I've not been there to tell you what the situation is — whether it's ice-covered or not — although that information I'm sure is available.
But most of our attention is down in the open-water areas, where there are actually vessels and activity ongoing.
Senator Segal: As you will all know because of your distinguished military backgrounds, part of what forces civilized countries to negotiate when there are problems is the understanding that the cost of not negotiating would be too high. The theory behind NATO for many years was a very successful balancing off of the Soviet thermonuclear power, and in the end, it ended a standoff that produced no shedding of blood at all.
Clearly, if we were to wake up tomorrow morning and find out that in response to Canada's submission with respect to the shelf and its length, the Russians had decided to deploy various assets — icebreakers, helicopters, et cetera — if we had 10,000 Rangers, which we don't — 5,000 is a great number and we're lucky to have them — that would be an insufficient response. We would have to be able to deploy assets, not for the purpose of conflict, but for the purpose of making it perfectly clear that conflict wasn't an option — rational negotiation was — and that Canada would do what was necessary.
I don't want the detail of what you would deploy and how you would deploy it — that's none of my business; that's your business, with cabinet approval. But I would like your answer to this question: If there was cabinet approval to deploy assets for the purpose of defining Canada's strategic interest in that part of the world — assets that would send a strong message to anyone who thought that our position would not be defended — are you comfortable that we would have the appropriate assets in the right context to deploy?
And I don't hold the uniformed leadership of our Armed Forces responsible for assets we should have and don't have, because governments haven't given you have the assets over the last 25 years.
Maj.-Gen. Coates: Thank you very much for the question. I hope I don't surprise you with a very quick response by saying yes, I'm confident that we could meet that mandate.
Within that question, as you framed it, if the government chose to make a statement through the deployment of troops to the north of Canada, I'm presuming this is a land-based deployment.
Senator Segal: My view of assets, because I talked about the Russians deploying ships, is that it involves the ``deep blue'' as well as the ``light blue,'' et cetera.
So, again, without getting into the details, it's a general question about assets that could be deployed in support of that mandate, should it be necessary.
Maj.-Gen. Coates: Then I would have to fall back on saying that I'm confident that the assets that we have we could deploy sufficiently to the North.
Then there is a hypothetical space there that you alluded to, senator, of if we had different assets, we could do different work. But I'm confident that with the assets we've got, we could mount the most appropriate response possible with those assets. They're prepared, equipped and trained, and we could command and control them in an effective manner. Certainly, with a different suite of assets, we could do different things.
Senator Day: My first question is a question of clarification. We began by talking about the six recommendations that this committee made, and then you, Mr. Chair, went on and gave an explanation of what progress had been made.
Was that the government speaking, was it you speaking — or where did that explanation come from?
The Chair: Senator, that was information I was provided with from my staff in respect of asking for an update on where we were with the report, so that we could start today where we were at with the witnesses. I thought I would give a basis for looking forward.
Senator Day: Can I assume that the witnesses were aware of the comments you were going to make and that and that they accept all those comments?
The Chair: No, but you can ask them.
Senator Day: That would be my question, then.
The Chair: Go ahead.
Senator Day: I appreciate — I just wanted to put that in context. You heard what was said, and now you know where that came from. If you have any issues on any of the points that the chair made at beginning, I would hope that you would come forward and let us know about that. You have made a lot of good points in bringing us up to date on what progress had been made, and General Woiden, thank you for bringing us up to speed with respect to the army.
With the time I have, I would like to ask one question in relation to the increase now to 5,000 Rangers, and I think that's absolutely the right way to go. I would like to see more hours available for each of these Rangers. I am assuming you haven't increased the hours of each; it was just increasing the number. But that's good as a start.
The interest I have is the relationship that these Rangers have with other federal government personnel who happen to be working in these very remote communities. I'm thinking in particular of the RCMP. In virtually all of these small communities, there's somebody from the Hudson's Bay and somebody from the RCMP working there. What relationship do they have with the RCMP, and what relationship do the two — the RCMP and the Rangers — have with these annual exercises that are going on in the North?
Maj.-Gen. Coates: If I can break that down into two parts, senator, the first is the relationship between the Rangers and their federal counterparts in the communities where they are. And I'll refer to a conversation that I had with the chief superintendent and commanding officer of the RCMP for the Northwest Territories a couple of weeks ago. We were talking about Rangers and the relationship, and it was obvious to me that his members in the communities are very cognizant of what the Rangers bring to the community: Their enthusiasm, their commitment to public service, and their capabilities are well recognized by the RCMP. And that's from the member at the detachment all the way back to the commanding officer of the RCMP division.
So I would say that, in that sense, it reflects probably a pretty typical relationship that exists throughout the region.
The second part of your question was how the Rangers are incorporated into the exercises. They're very integral to our exercises in the North, whether it's Operation NUNAKPUT, along the Mackenzie River where we operate with the Coast Guard, the RCMP and Rangers on board patrolling up the Mackenzie River; or whether it was last summer as I watched Operation NANOOK at Resolute Bay on Cornwallis Island, where Environment Canada went out on a simulated poaching scenario and they had Rangers out with them, as well as members of the Arctic Response Company Group out on the patrol. There is a very tight relationship that I've seen at that level. It was the same thing in Iqaluit when I saw the Rangers integrating with the Coast Guard there for a scenario in Operation NANOOK.
I would say it is an enviable relationship that they have. Perhaps General Woiden has something to add.
Brig.-Gen. Woiden: I think one of the key things — you talked about the amount of time the Rangers have available, and the annual 12 days given to the Rangers are for training. The operational side is a separate fund; when it goes for Operation NANOOK, they have separate person days allocated for that. That's over and above.
We also have what I mentioned last time I spoke before you, which is the Development Period 1, which is junior NCO and senior NCO training — DP2. Those are over and above training, as well. That does not come out of the 12 days baseline — what I will call sustainment baseline training, which is training only.
Probably the biggest thing to remember is that Canadian Rangers are part of the community. They come already trained as Rangers, because of their inherent northern capabilities. They're self-equipped; they come with their own snow-machines, ATVs, small boats — whatever that may be — dog sleds, for that matter, horses and mules.
Whatever is required for capability, they have, and we reimburse them for the use of their equipment.
We are not into a big logistic chain. To be honest, it would be very hard for us to fly in the right piece of kit to work in that environment. They already know.
From that perspective, they have the ability to be that connection with the local RCMP, the local Natural Resources Canada people, all those various organizations, because they are already part of that community. They may be teachers; many of them are very prominent members of their local community, so they're very strongly engaged already. And by the very nature of being a Ranger, they are, in fact, doing the observation and reporting piece without doing any of the training.
Senator Stewart Olsen: Gentlemen, thank you for being here. I want to congratulate you on the Ranger program. I had an opportunity to see it when it was very young, and now it's become much more professional.
I would like to know: Do you use the expertise of other countries that have developed forces like this? I'm thinking in particular of Scandinavia. Have you done some joint exercises with them? How are you handling giving our Rangers that added expertise?
I have to say this is all new, I think, and we're developing this as we go. I'm wondering whether we use already- developed expertise?
Maj.-Gen. Coates: I'll start the answer and then go to General Woiden, as the army is responsible for generating Rangers, but I'll just give you an anecdote from my experience.
I am also a member of an Arctic Security Forces Round Table, with about 12 other nations, and all of them are very envious of our Ranger program, so I get the feeling they would all like to see something like that develop in their own nation. I was in Greenland and met with the Premier of Greenland, and she was asking me how they could develop a ranger program in Greenland. They don't use the Inuit people of Greenland in the same fashion that we employ ours in the Ranger program, or the non-Inuit people who are also Rangers, the northerners. She was envious of our program.
I am of the opinion that there are no programs like the Rangers anywhere else in the world. It's a Canadian first and something we should be very proud of.
Brig.-Gen. Woiden: Perhaps I will add that this program has been going on almost 60 years, longer than most people realize, so it's pretty established in its basic context in the parameters I talked about. They come already equipped, they're self-trained, they're northern peoples, and on the east and west coasts as well. That is probably one of the biggest things. It is not strictly in the Arctic. It is also on the coasts and the coast watchers.
They do have a unique capability, and to the best of our knowledge are not commonly similar to any other countries to the same construct that we use them. And the Rangers are part of our Primary Reserve in the manner that we do use them.
Senator Stewart Olsen: It was a very interesting to actually know, then, what they are supposed to be doing. If you have something written and you could send that, that would be great. I would love to receive that.
The other thing is how are you integrating our regular forces into the northern combat roles?
Maj.-Gen. Coates: First, we will take it on notice that —
Senator Stewart Olsen: I overstepped and did two questions.
Maj.-Gen. Coates: From a Canadian Joint Operations Command perspective, whether I look at the army, navy or air force, our services are generating forces to meet the operational requirement that we've provided for them.
In terms of army capabilities, what we're asking our army to do for us is to be able to survive in the North and operate to support other government departments, to be able to do presence and sovereignty patrols. That's what we've asked of our army to be able to do.
You asked about combat. That's not something we have asked specifically to be able to do in the North. General Woiden will be able to talk about that, but our soldiers learn combat whether they are in the North or not, so we don't focus on combat in the North. We focus on other specific skills in the North.
Senator Dallaire: My —
The Chair: Senator Nolin, you had a supplementary?
Senator Nolin: I have a short supplementary.
The Chair: Can we be short.
Senator Dallaire: Chair, listen, the ground rules were established. There was one question. I have at least a dozen questions, and I have been playing by the rules since we started this session, so I insist that my colleagues play by the rules.
The Chair: Senator, I agree. For the next —
Senator Stewart Olsen: I apologize.
The Chair: That's fine. For the next witness we will be following the rules. The chair will exercise his prerogative.
Senator Dallaire: Thank you, chair.
I want to go back to the Rangers. One, why are they not more extensively used on water, as they know the water far better than anyone else, and that we give them more capability to be on the water for supervision and the like? In that context, the history of the 12 or 13 days paid goes back also nearly 60 years. Surely there should be an upgrading of how many days they should be paid for their competencies. Do they get a pension? Do they get injury protection under SISIP and that type of stuff?
Maj.-Gen. Coates: The first question is with respect to the maritime capability of the Rangers. As General Woiden pointed out, the Rangers operate with their equipment in their environment. Whatever their personal equipment is, whether it is an ATV or a snowmobile or a boat, they operate with that in the environment they are in.
We do take advantage of that. During the Prime Minister's trip to the North last year, he and his party were with the Rangers in one of their boats as they were moving up from Gjoa Haven.
It is a capability that we utilize and exploit. Whether it is sufficient or not, I've not gotten any indications from Joint Task Force North that there is a gap there. At the moment it appears as though we're meeting the requirements in the North.
With respect to the other part of your question and the number of days and the pension benefits for Rangers, I would have to turn to General Woiden on that.
Brig.-Gen. Woiden: Just to go back quickly on the capability on the water-borne side, we have a variety of different patrol types. We ask the Rangers to do sovereignty operations, sustenance patrols, that type of stuff, but one of them they have been developing over the last three years, both in 1st Canadian Ranger Patrol Group and now most recently in 5th Canadian Ranger Patrol Group, is water-borne patrols, and they do that with their own boats again. They are equipped and they are capable and all trained to meet the local requirements as far as water and ship, et cetera. They come already trained.
I witnessed last year a patrol of some 20 vessels when they went up the river. They went for a five-day patrol and came back again. We are seeing a lot more of that capability, whether it is dogsled or ATV. They are utilizing the various modes of transportation.
To get to your question on compensation and benefits, when they are deployed on operations, then they are on Class C operations, and they get the exact same benefits as any other primary reservist if they're injured. They fall into those same requirements or same benefit package.
To be quite honest, you've got me. I cannot remember off the top of my head if they are eligible for the pension program. I'm not sure. I think it's based on the contribution piece, but I will get back to you and confirm.
Other than that, if they are on service and actually conducting training, they are exactly the same as a primary reservist, and therefore, if they are on operations, they get benefits on the same capacity.
The Chair: Gentlemen, we have time for one very short question.
Senator Nolin: Very short supplementary. General Coates, in a question from my colleague, Senator Stewart Olsen, you referred to a round table of 12 nations. Could you give us more details about that round table? Under which auspices is it, and which nations are there? I understand that the purpose of that round table is security.
Maj.-Gen. Coates: The round table —
Senator Nolin: So it's not the Arctic Council.
Maj.-Gen. Coates: No, it's not under the Arctic Council. It was convened initially by United States-European command in coordination with the Norwegian Armed Forces to bring together those with an Arctic interest to discuss Arctic defence and security concerns. It consists of the eight Arctic Council nations, plus four — England, France, Germany and the Netherlands.
Senator Nolin: Russia is there?
Maj.-Gen. Coates: Correct, Russia is there.
Senator Nolin: Finland is there?
Maj.-Gen. Coates: Yes. China is not there. We met in Finland in September of this year. It meets about three times a year at the working group level and once a year at the general officer level.
Senator Nolin: The Arctic Council nations are there, but it's not under the auspices of the Arctic Council?
Maj.-Gen. Coates: That's correct.
Senator Nolin: That's interesting.
The Chair: Thank you, gentlemen. Perhaps on that particular item you can send us more information, if you don't mind, to clarify exactly what this organization is and what it does. I would like to thank you very much for appearing. We appreciate your sharing your insights with us as we followed up on our previous report.
I am now pleased to welcome the Honourable Chuck Strahl, Chair of the Security Intelligence Review Committee — that's quite a handle — and the Executive Director, Michael Doucet, to the Standing Senate Committee on National Security and Defence.
As this is the first time the chair and the new executive director are attending this committee, we extend to you a very special welcome.
In SIRC's 2012-13 annual report, you note that the organization serves as the fundamental check on the extraordinary powers granted by Parliament to the Canadian Security and Intelligence Service, CSIS.
This is an extremely important role you're called upon to perform and we know you take it very seriously. On behalf of the committee, we thank you for your work and welcome your commitment, as noted in your report, ``to promoting and enriching the critical national conversation on the aims and limits of security intelligence, and of CSIS's duties and functions in support of those endeavours.'' We also acknowledge your encouragement of CSIS to realign and recalibrate a range of policies and approaches to support its investigative activities.
Before we get deeper into the subjects, I understand that Mr. Strahl has an opening statement. We have one hour for this panel. I would like once again to stress that the chair will express his prerogative in ensuring each member starts with one question and then we go to another member. We'll make sure we follow the rules.
Mr. Strahl, please proceed.
Chuck Strahl, Chair, Security Intelligence Review Committee: Thank you for inviting SIRC to appear. It's always a privilege to address any parliamentary committee, and I hope that my comments and our discussion will lead to a fruitful and productive exchange. I'm sure it will. I think the work that you're embarking on here is obviously timely, and we welcome that.
I'm accompanied, as you mentioned, by Michael Doucet, our executive director. I would also like to extend greetings from other members of the committee you may know. They couldn't be here today but I extend greetings from them.
I was asked to appear to discuss SIRC's annual report for 2012-13 along with an overview of our findings and recommendations. I will happily do that. I'd like to preface that discussion with a brief context of SIRC's roles and responsibilities, especially as our mandate expanded slightly in the last year following the dismantlement of the Office of the Inspector General of CSIS.
SIRC's role is relatively easy to describe, and it's a rather complex one to execute. Simply put, SIRC was established to provide assurance to Parliament that CSIS is complying with the law in the performance of its duties and functions, and in doing so, the committee ensures that CSIS doesn't undermine Canadians' fundamental rights and freedoms while it carries out its mandate to guard against threats to national security.
SIRC is the only independent external body with a statutory mandate and the expertise to review CSIS's activities. What I mean is that SIRC is at arm's length from the government and doesn't report to any particular minister but rather directly to Parliament. Moreover, SIRC has the absolute authority to examine all of the service's activities, no matter how sensitive and how classified that information may be. The only exceptions to that are cabinet confidences, but that's the only limitation on our work or what we can examine. In our interactions with international colleagues, it's clear that SIRC's power and access to information are the envy of many of our foreign counterparts.
SIRC has three principal functions that it does. One is to conduct reviews of activities of CSIS. The second is to certify the director of CSIS's annual report to the Minister of Public Safety. That's the new responsibility for us. And it is also to investigate complaints. I can give a quick summary of each.
SIRC's reviews in any given year are designed to yield assessments across a wide range of CSIS activities, and over time this helps to ensure that we have a comprehensive understanding of all of the service's activities. Given the size of our staff, SIRC must be strategic in the selection of which items it chooses to review in order to ensure that over time this broad representative and timely coverage of CSIS activities takes place.
SIRC considers such things as events or developments in the field of intelligence, government intelligence priorities, new directions or initiatives of CSIS, and issues raised in the course of SIRC's complaints functions. All of those guide our priorities as we do our reviews. In recent years, SIRC has chosen to review some very timely and topical areas, which I'll describe in a few moments.
Our certification process requires us to assess the CSIS director's annual report to the Minister of Public Safety. The director's report provides the minister with information to assist him in exercising ministerial responsibility for CSIS. SIRC examines this report and then provides assurances regarding the legality, the reasonableness and the necessity of CSIS's operational activities as described in that report.
Finally, SIRC investigates complaints, and these can take several forms. Under section 41 of the Canadian Security Intelligence Service Act, SIRC investigates ``any act or thing done by the Service.'' Under section 42, SIRC investigates complaints about denials or revocations of security clearances to federal government employees and contractors. Then less frequently but also possible, SIRC conducts investigations in relation to referrals from the Canadian Human Rights Commission or ministers' reports with respect to the Citizenship Act.
The annual report that you've asked me to talk about for a moment is a compilation of the work undertaken on all three of these functions. In SIRC's annual report for 2012-13, we included declassified summaries of the nine reviews and five complaint cases we completed, as well as our first certificate. Our assessment was that, overall, CSIS's activities and investigations on threats to Canada's national security respected the rule of law and that CSIS operated within its mandate. Our assessment was supported by our first certificate, in which SIRC found that the activities, as they were described in the report, complied with the CSIS Act and ministerial directives and constituted a reasonable and necessary exercise of the service's powers. SIRC did point out, however, that future reports by the CSIS director should include a more detailed description of both section 16 activities as foreign intelligence and operational activities overseas.
Although we were generally satisfied with the service's performance, I should take a few moments to discuss some areas of concern we identified in the course of our reviews, as well as the recommendations we made to address those issues.
There's no doubt in our mind that information sharing is at the forefront of those issues that warrant our close and regular attention. As intelligence agencies work in a more integrated manner to gather information of various threats to national security, SIRC must closely examine how CSIS cooperates and exchanges information with both its domestic and foreign partners.
Accordingly, SIRC examines CSIS's relationship with CSEC in two studies. We found that a significant risk of closer collaboration between CSIS and CSEC was the potential erosion of control by CSIS over information it provides to CSEC and, by extension, the Five Eyes community.
SIRC arrived at a similar conclusion following a review of the new warrant power. In this review, SIRC examined the processes, policies and controls that CSIS has put in place to manage the new power as well as CSIS's cooperation and exchanges with partners. We found that its practices carried the risk that a Five Eyes partner may act independently on CSIS-originated information. We recommended that CSIS develop clearer and more robust overarching principles of cooperation with CSEC and that it develop a regime of caveats and assurances with all Five Eyes partners to ensure greater control over its intelligence.
Another area SIRC committed to examining is CSIS's evolving and expanding activities abroad. Two of our reviews focused on these activities. SIRC found that overall these overseas collection initiatives have been both measured and cautious and have not come at the expense of CSIS's domestic responsibilities. In examining CSIS's approach to representation abroad, SIRC found that there were both challenges and opportunities; and SIRC recommended that CSIS take action to ensure that internal documents — documents it uses to help manage more effectively its foreign partnerships — are accurate, complete, up-to-date and relevant.
At the same time, SIRC is mindful of the need to continue looking at CSIS's activities vis-à-vis threats that are not terrorism-related. For this reason, SIRC looked at how CSIS conducts the changing threat posed by espionage and foreign-influenced activities. We found there were challenges associated with making the distinction between clandestine activity and legitimate diplomacy; and SIRC recommended that CSIS fine-tune its policies and practices by identifying common and consistent criteria to determine when an activity has crossed the line.
In recent years, SIRC has also sought to undertake baseline reviews examining the service's activities in new areas. This year, SIRC examined CSIS's support to Canada's northern perimeter security, which is a government priority. SIRC found that CSIS's management is currently sufficient but recommended that CSIS make efforts to ensure that appropriate and specific resources are allocated for northern initiatives in the future.
Finally, SIRC examined CSIS's role in the matter of Mr. Abousfian Abdelrazik. The concerns SIRC raised were as follows: CSIS inappropriately disclosed classified information; CSIS created an intelligence assessment that exaggerated and inaccurately conveyed information to domestic partners; and CSIS excessively reported information not related to the threat originating from individuals who were not targets. Almost a decade has elapsed since Mr. Abdelrazik first left Canada. In that time, SIRC and other commissions of inquiry have made a number of recommendations that would apply to this file. Accordingly, SIRC made no further recommendations in this review other than the summary I just read into the record.
However, in our opinion, this review did underscore SIRC's limitation to follow information when it crossed over to other federal departments or agencies. For a number of years, SIRC has been saying that although it has great powers to review CSIS's activities and operations — all the powers I mentioned earlier — this ability does not extend beyond CSIS. As even greater integration and information sharing becomes the modus operandi of contemporary intelligence work, SIRC believes it should be equipped with the tools needed to follow and effectively review CSIS's activities. As we say in our annual report, SIRC must be ready with the legislative tools and matching government resource commitments to ensure that the checks and balances enshrined in its mandate remain relevant and effective.
In fact, recent international consternation over revelations that our American neighbours had carried out broad and controversial surveillance activities have led to widespread calls for greater accountability of intelligence agencies. There is a sense that the drive for collective security post-9/11 has come at the price of individual rights and privacy and that intelligence work should come under closer scrutiny in Canada. As you know, this has found a vehicle of expression in calls for parliamentary intelligence oversight. As these discussions unfold, SIRC hopes to have the opportunity to contribute its thoughts and opinions. In the meantime, we will continue to do our work helping to hold CSIS to account for its performance and to ensure that CSIS's activities do not infringe on Canadian rights and freedoms.
Thank you for giving me the opportunity to speak to you this afternoon. I would like to end my comments by stressing how important SIRC views its relationship with Parliament as being. I mentioned earlier about the independence from ministerial influence and the fact that we report to Parliament as an extension of Parliament. Indeed, when legislators created SIRC almost 30 years ago, our annual report was intended to serve as an important vehicle to keep Parliament informed of CSIS's activities. In SIRC's first annual report, tabled in 1985, the committee noted that it believed ``that parliamentarians intended it to act on its behalf'' to ensure that CSIS, while effectively protecting the nation's national security against non-military threats, treats individual Canadians fairly. Almost 30 years later, SIRC still upholds this vision, and for this reason, we're pleased to be here this evening. Thank you for inviting us to appear and for your attention. We look forward to answering any questions, wherever you might like to lead us.
The Chair: Thank you, Mr. Strahl. Perhaps I could ask a general question.
You referred to the legislation and the fact that it's 30 years old as of this year. Perhaps you could inform us a little bit regarding what you see as actual gaps in the legislation that's in place in view of the fact that we're going into 2014 and things have changed so dramatically with respect to communications and privacy rights for Canadians, which is paramount and obviously one of your responsibilities. Perhaps you could just maybe inform us a little bit with respect to our relationship to CSIS versus CSEC and what legislative steps should be considered here in the upcoming years.
Mr. Strahl: Certainly. Thank you for that. I'll start by saying that it was 30 years ago that it was drafted in response to the MacDonald commission's report. You have to think that 30 years ago there was no Internet. None of us was using email at the time and so on. It is a different world than it was 30 years ago.
I should point out that the legislation is tremendously strong, powerful and useful and really the envy, in many ways, of other jurisdictions around the world. We have the power in SIRC to examine anything that CSIS does. We can get access to any document. Any process, procedure, human resources, anything we want we can get access to. That's tremendously powerful and the part that I wouldn't encourage you to touch. I think that gives some assurances to people that they're not hiding secrets in the vault somewhere because we have access and we get access to everything.
That said, what I don't think was envisioned at the time of the legislation was the fact that security agencies of different sorts were going to need to work together a lot, and, increasingly, that's the case. So CSEC is a good example. CSIS is primarily a human intelligence organization. That's how they collect information and how they go about their business. CSEC is a signals intelligence organization. They get theirs from the signals world, if you will, from electronic surveillance, who knows, lots of things.
What we're finding increasingly is that CSIS is having to engage other partners in order to get the information they want. We can examine anything that CSIS does. What we have highlighted and made note of is that we are increasingly nervous or wary of the fact that you come up to an imaginary wall, if you will, where we examine everything that CSIS does, but now it involves other departments. It might involve a no-fly list. It might involve CBSA or CSEC, and so on, but our authority extends only to CSIS in our review process. So I think the committee is, and the government would be, wise to look at — and it's a modern reality — how we can make sure that we don't, when we're chasing a thread and trying to make sure that Canadians' rights are being protected, run up into the legislative wall of saying, ``Well, yes, but you can only look at CSIS, even if the new thread continues on into CSEC,'' as an example. That is one thing I would encourage you to think about.
The second is that there are lots of calls for a parliamentary oversight committee, the necessity of it, the value of it, perhaps. We can get into the details. It's not my position to put forward options, but I'm happy to talk about what I see as positive about and concerns with that model. But that's not in the legislation right now. Right now it's basically that SIRC is higher, if you want. They engage a bunch of us folks who have been in the public domain for a long time, usually from all different party backgrounds, and they basically hand it over to this committee to assure parliamentarians that things are going well. There is no provision in there for parliamentary oversight.
Senator Dallaire: We're on the subject through the question of the chair, and that is the enormous amount of work you do in collating information and doing your assessments and the worries you have about dissemination of that information to other elements. You speak of the Five Eyes — but there are also other allies that they're interfacing with — and whether they can see Canadian-eyes-only stuff and all that material. But the realm of intelligence is now so pervasive, as you yourself are describing, including within the government departments. They have security officers now and so on, the whole cyber dimension. I just can't see how, being the independent body that you are, which is fine, having access to all the classified material, being able to assess whether the funds that CSIS is getting are sufficient or whether there are other guys out there who are getting too much or not enough money to do their part of the exercise and who is bringing all of that together, keeping parliamentarians on a non-classified report status is actually logical in this era where things are far more volatile and complex, where we have internal threats that we never had before, let alone external ones, which are far more ruthless, and how we would argue for being the only one of the Five Eyes that doesn't have parliamentary oversight in classified matters. I don't see having that as reducing your job. On the contrary, I would see it as being able to assist and bring all the other players to the table. Would you not agree?
Mr. Strahl: I don't disagree with that at all, senator. My point was only that the legislation doesn't provide for that. Nowadays, people want increasing assurances or are increasingly worried, especially about privacy concerns and what's happening to the information about them. It tends to get muddled between stuff we read about the Americans and stuff about ourselves in Canada. It all gets mixed together. In the end, though, people need assurances. How can I ensure that my rights are being protected, my privacy is being respected and so on?
I think the idea of a parliamentary oversight or review committee, depending on the structure, could be a good one. I think the questions then would properly be the following: What would the complementary role be? Do you still need a role for a body like SIRC, for example? SIRC, as an example, hears complaints in a quasi-judicial role. Usually the judicial role is not left for parliamentarians. It's a separation between the two, rightfully so. As an example, that's something that I would suggest would likely be left with a body like SIRC because I don't think parliamentarians want to be judge, jury and legislators all at the same time.
Senator Dallaire: We do it to ourselves, but not necessarily.
Mr. Strahl: I'm not going to wade into those waters, but, anyway, that's a caution.
In addition, some of the other things that would have to be wrestled with would be things like the composition of any parliamentary committee. Of course, I'm more familiar with the house side, but the composition of house committees tends to revolve quite often. How would you get security clearance? How could you substitute somebody in? What would you do with classified information? I know, for example, in SIRC, no classified documents leave the building. I never get to take them home and read them. In fact, I come in a day early to read the documentation because I don't take it out of the building. We are just so careful with classified information.
So a parliamentary committee would need to be prepared for that. If you're going to be cleared, be prepared. How you handle documents, what you're going to be exposed to and how that's treated is its own little world. You would know about that, senator, of course, in your previous experience, but it's not a small item. It tends to drive how you conduct yourselves, where you can conduct hearings, how secure the room must be, how often you sweep it, how you make sure the document doesn't go missing, and how you make sure that you separate the political from the security world. Once you're privy to top-secret information, it cannot be shared. It cannot be used politically. People on that committee have to make a judgment call. I think there's wisdom in what you say, but these are all questions that would have to be answered in any parliamentary oversight committee. It's not a small thing, and it would be very tricky to get the right balance. In the end, my conclusion, from what I've seen over the last couple of years, is that it would be working kind of in lockstep with a committee like SIRC or with SIRC to make sure we don't replicate one another's work.
If I could use an example, one of the things in our report was an examination of the government's decision to include the North as a priority item. That's not a secret; that's well-known now. It's in the report. We say that they're doing an adequate job but that we're concerned for the long-term future.
But a parliamentary committee may well say we have an opinion on whether the North should be included, expanded, whether we should put more resources in there. In a sense, I find myself in this role and in our role as we don't argue with the government if they want to include the North. If they want to include the North, we say, ``Okay, good, now our job is to make sure you do it well, that CSIS does it well.'' But a parliamentary committee might well say, ``We want to examine the wisdom of that in itself,'' and that in itself is a separate role. We don't do that. That would be a welcome addition to say, ``I think you should do more of that, less of that.'' We don't tend to get into that side of it, and a parliamentary committee could certainly do that.
[Translation]
Senator Dagenais: Mr. Minister, thank you very much for your very clear presentation. I would like to go back to the cooperation between CSIS and CSEC. What is the nature and scope of that cooperation in terms of counterterrorism and cybersecurity?
[English]
Mr. Strahl: Well, there is a good relationship between SIRC and CSEC. We meet regularly, both at an officials' level and I meet with my counterpart there. We discuss, in broad terms, the challenges of being a review committee, if you will, or an oversight committee, and we discuss everything from best practices, both in our own jurisdiction and others. The weakness of it is that neither of us has clearance to delve into the details of the other's operation. Both committees have issued reports saying, in essence, that we need to work together more, and it is reflective of what was said in Justice O'Connor's report and Justice Iacobucci's report and others that said there needs to be some way. One suggestion was there needs to be a statutory gateway into one another's world so you can get into the details when necessary. I think both of us feel somewhat — I don't know if the word is frustrated — but certainly inhibited. We are very cautious. If the legislation is clear that we're allowed to go and look at everything that CSIS does, but there's no mention of CSEC, well, then we do everything that CSIS does. Other than broad generalities, we don't feel we have the statutory authority to go deeply into CSEC's business. When they come and tell us, we don't start saying, ``What the heck. Let's talk about stuff we heard at a hearing.'' We don't do that; we are not allowed to.
To answer your question, we have a good relationship. We work well together at kind of the 30,000-foot level, but I think there is increasing understanding that our worlds overlap quite a bit and that we need to find better ways for both of us to get into the weeds when we need to, if I can use the expression, because once in a while, the trail is not going to stop nicely and neatly at CSIS's door. It blends not just into CSEC but also others. Other agencies, by necessity nowadays, are working closely with CSIS, and increasingly we're going to need some way of chasing those threads. Otherwise, we'll have to tell parliamentarians that, as far as we can tell, everything looks great in CSIS country, but we don't know what happened over that fence; you're on your own. That's not very assuring to parliamentarians who want to know that rights have been protected and that privacy is paramount, because we can't guarantee it or investigate it, if you will, past that imaginary statutory limitation. I'm repeating myself, I think, but it is a very real thing, and, while it's not a crisis, it will increasingly become obvious. It will be, I predict, in every annual report from here on until it's fixed.
Senator Mitchell: I was very interested in your discussion of the question of political oversight. Really, my question would be focused on clarifying and emphasizing that point. You made the point, I think, early in your presentation that SIRC is responsible for reviewing the application of the government's priorities with intelligence. You made the point that, certainly, it's no secret that one of our priorities is the Arctic. I'll bet there are many other priorities that are classified.
It would be the case, therefore, that whereas you largely have an audit function — and I don't mean to demean that, that's an important function and I think that's what you're saying — really, the important policy function of determining what the priorities are isn't something that you could comment on specifically, nor is there any other body that would do that. That would very much appropriately be done by a parliamentary body, which would have legislative and political and public policy authority to question that set of priorities, which ergo now is not really being questioned outside the minister's office.
Mr. Strahl: I think there is some truth in what you are saying. The difficulty is always how to structure it to make sure that whatever the makeup of a parliamentary body, maybe both houses or house and Senate — I don't know what it might look like — so they could do it in a way that gave further assurance to Canadians and parliamentarians that there was a review of not only the audit function, as you called it, but also the policy function.
I know that one of the proposals in the private member's bill that has been tabled in the house, for example, is that a committee should be struck, and that the committee would examine all issues that the minister should refer to it. That would be good, too, but that's not what you're describing. It's not an independent body. I will take a poke at this from the angle of an independent body of experts or a review of parliamentarians, because from that particular angle, the minister refers things to the committee, and the committee looks at whatever he or she refers. All of that is to say that's why a lot of thought will have to go into this to get it right. If the objective is to provide assurance to parliamentarians and, through Parliament to Canada, then you want to have enough independence in the parliamentary overview so that it's not a ministerial overview.
I'm not picking on the minister. The minister can actually direct us. He has the power to say, ``I want you to look at this.'' That's useful. At times, it has been used in the past on certain high-profile issues — nothing wrong with that. But we also are completely independent, so we might look at that and maybe eight other issues that the minister never hears about until they're done.
If a parliamentary oversight or review committee is part of the answer, then I think you want to be careful in structuring that so that it's not to provide just assurance to the minister, although the minister needs to be assured, as we do in the certification of the letter from the director of CSIS. That gives some assurance to the minister that they are following the rules, but if the objective is the independent report to Parliament, then you don't want just to respond to the minister. You also want to say as parliamentarians, independently of the ministerial world, ``I want to have an ability to look at policies, examine budgets and priorities and so on.''
I've been around long enough to know that no one's cavalier about this, but it points to the need to look at it in detail, not just the first thing that comes up or even another model. I think of the American model, and they do some good work, of course. It's interesting. In the American model, the committee on security oversight meets less than any other committee down there.
There's no political value in it. Once you set yourself up and there's no political stuff in it, you can't talk about it. Once you know about it, you can't ask the minister a question.
Senator Mitchell: It's perfectly suited for the Senate.
Mr. Strahl: Just like being careful of what you ask for because you might actually get it, in this case, once you're privy to top-secret information, you can no longer stand for your constituents or your region or your province or anyone else and say, ``I am appalled at what's happening in whatever,'' because now you are privy to top-secret information you're not allowed to talk about.
You have to be careful what you ask for. In other words, be sure as you go ahead to structure it well so it doesn't actually tie your hands more than is useful. It depends on what you want to do, but if the purpose is to reassure parliamentarians, and through them Canadians, if that is the objective, then I think how it's constructed becomes more obvious. If it's something else, if it's like, ``I can hardly wait to know about this because I think I can use this,'' then my prediction is it won't work.
Senator Wells: Thank you very much for your presentation thus far. I don't know if this question is for Mr. Strahl or Mr. Doucet. I'll leave it to you to choose who is most able to answer.
Threats transcend borders, so we reach out to our partners in the Five Eyes, and that seems to be a group that is clearly greater than the sum of its parts.
In SIRC's review role, how defined a line is there between doing what needs to be done to protect against threats to Canada and protecting Canadians' rights and protections to privacy? Is it defined by warrants? Is it normal intelligence protocols? How does that work? There is a balance somewhere.
Mr. Strahl: I'll take a stab at it and maybe Mr. Doucet might want to add something.
Without a doubt, the Five Eyes relationship is very special. Probably, I would say, especially in CSEC's world it's particularly important because information and the way it's gathered tends to be shared among the Five Eyes because there's really no other way to do it, in my understanding. We don't get into the CSEC world, of course, but my understanding is there's really almost no other way to do it. These are international problems with international implications that we share amongst the most trusted of our allies, and that's the Five Eyes. We are fortunate to be part of that, and I think it's a necessary part of Canada's security system.
What we've described — I want to choose my words carefully here. We're just asking CSIS to be sure that when they work with our Five Eyes allies, they put in place the appropriate caveats on the information that is shared so that it is used properly. They have to share information, but sometimes if you simply have a concern about this activity in your country and you and I need to work together on this, you don't want to then share that CSIS-generated information about an individual. It goes into the Five Eyes system and then disseminates out to everybody. It might only be important between you and your country, that one country and me.
They have in place, for example, a set of caveats and protocols with one of our Five Eyes partners that is quite explicit, good and strong. It makes sure that information that's shared doesn't go further. We have said, as you're increasingly doing this, you need to have those types of caveats and protocols in place with all of our Five Eyes partners, how that information is going to be used and what will happen to it afterwards. We don't want to go into it and then lose control of it, if you will.
That's the worry. It's not that we have evidence that it's done badly or with any bad intent. They already have a good example of protocols and etiquette, if you will, and not just etiquette, but legal documents on making sure it's protected, and we think that's good, but it needs to be extended to all Five Eyes partners, the other four, so that we are assured of that. And Canadians can be assured it's not, after it's disseminated to one, just sprinkled to the others. That's really the concern that we evaluated in this report.
Mr. Doucet, do you have anything to add?
Michael Doucet, Executive Director, Security Intelligence Review Committee: Maybe just to separate your question to begin with CSIS's international relationships and the collection of human intelligence information, CSIS will make, in our view, very structured decisions on caveats, as mentioned by the chair, and how they share that information within the context of human intelligence. When you then layer onto that their relationship with CSEC, and as they are providing information to CSEC for what we would call targeting, quite frankly, now there's an erosion of control on that information.
I think it's very clear that other countries will use information in their national interest, and there is no mechanism to stop them from doing that. As the methods of sharing change internationally and nationally, CSIS has to be very wary of with whom and how they're sharing and, as I mentioned, that erosion of control.
Senator Wells: Thank you.
Senator Day: I'm interested in knowing the determination of priorities in terms of activity that takes place. You talk about the back end of sharing that, which is a very interesting point.
At the front end, who gets together with whom to determine where the activity should take place? You can't do everything. What relationship does CSIS have with the Communications Security Establishment Canada in terms of determining priorities, and how much outside influence is there? Do we give away some of our opportunity to set priorities in Canada by virtue of the Five Eyes relationship? Are you able to help me with that?
Mr. Strahl: Again, I'll take the first stab at it.
I can't really get into the CSEC world. I think you're going to have them appear as witnesses shortly, so I think it's a good question on how they set their priorities in terms of the Five Eyes. I'll leave it with them.
For CSIS, the minister who is responsible for CSIS gives direction to it about the priorities. For example, if it's on counter-intelligence work or counterterrorism or domestic terrorism or, as we pointed out, increasing emphasis on the security of the North, all of those things come from the minister. I don't know exactly how he comes to his conclusion, whom he talks to. No doubt there's exchange between the CSIS director and him and who knows who else, but the direction on priorities comes from the minister through ministerial directives.
Mr. Doucet: I think that's right. Thank you.
I would also say that priorities are dynamic and will change as a result of international and national events. Certainly when Canada is hosting an event such as the Olympics or economic summits or things like that, priorities will be shifted to support those activities. The service will knowingly shift their priorities to respond to government priorities based on events in Canada or abroad.
Mr. Strahl: If I could just add, Mr. Chair, none of that, of course, determines what we examine. We review whatever it is that we want to review. We don't get any directive from the minister. He could ask us to dive into, and has on occasion, a particular high-profile issue. It hasn't been since I've been there, but previously.
In general, I can say that we review in kind of a systematic way all aspects of CSIS in an ongoing manner. So we'll look at warrant powers, then we'll come back and examine it two years from now to make sure there have been improvements. In the meantime, we're looking at other issues.
We look at an array of issues based on both our own research and the complaints that we've had come into the department, and as I mentioned, the act allows for a minister to give us direction on an issue as well. We set our own course as committee members, the five of us, working with staff to set out a work plan every year. It can change if necessary, but it's done independently and based on our own desire to regularize issues we've raised in the past that we want to follow up on, current events or things that have arisen out of complaints or reviews that have pointed out how we need to get further information or reviews on particular subjects.
Senator Day: Just to clarify your answer — and that's all I want to do, just to clarify it — could you review the prioritization of activities?
Mr. Strahl: Yes. We can examine anything, but, as I mentioned earlier, we're always interested in whether new powers have been given. You mentioned the new warrant powers. When new powers come down, we look at that right from the beginning and track it to see how it's being followed through.
We don't generally question the government's priorities. They'll have their set of priorities. We have our own as far as review. We just chase things, and then we'll often review it based on whether we feel, in the course of our work, that we're seeing a trend develop where we feel it's not being adequately addressed or that it's raising some concerns with our researchers or with our legal counsel or whatever. So we don't question the government; I've never sent a letter to the minister saying I don't think your priorities are right. We feel that's a political decision. That could be asked in the House of Commons. They could say what are your priorities, and why aren't you doing X, Y and Z? It's a good political question, but we don't tend to do that where we are.
Senator Segal: Let me just say that I think all Canadians are lucky to have you as chair of SIRC. I don't know how you were encouraged to give up a relaxed retirement after such distinguished service as a minister and an MP.
Mr. Strahl: That's classified.
Senator Segal: It is classified, but I'm glad, however it happened, that you said yes.
Mr. Chairman, you talked about review. You talked about dealing with complaints. You talked about things that are, essentially, retrospective by definition, and that relates to the law that describes SIRC's activity. When the Chairman of the British Intelligence and Security Committee of Parliament, Sir Malcolm Rifkind, met a few years ago with the Special Senate Committee on Anti-terrorism, he described those functions. He also described a function whereby agency heads could come and talk to the committee, in the strictest of confidence, about their challenges and problems on a prospective basis, issues they faced, resource issues, planning issues and budget issues. That was deemed to be a normative part of their remit. They have been operating for 19 years now, and this is a joint committee of parliamentarians — House of Lords, House of Commons, people with different backgrounds, former police chiefs who are in the Lords, secretaries to cabinet, chiefs of the defence staff, former home ministers, home secretaries, from all parties — without a leak. Nineteen years without a leak. I suspect that's a pretty substantial record of achievement.
My sense from what you've been so frank about around this table, for which I'm very grateful, is that you're not questioning the value of having something like that. One would have to be very careful about how it was structured, but it would not get in the way of your mandate, which is, in fact, quite different. I just want to make sure I'm understanding what you're saying in a fashion that's correct.
Mr. Strahl: After we tabled our report, I did an interview, and I was asked what I think about these ideas that are being floated about an oversight component. I said that, from my time in the House of Commons, in a previous life, I think that any time there is an open debate on any number of issues, it's a good day. I think the discussion that has come up for one reason or another — for a bunch of reasons I suppose, including Mr. Snowden's revelations and other things we've seen not only in our own jurisdiction but also in others — is not only inevitable but also a good thing. It is a good thing to evaluate a 30-year-old piece of legislation to see if it can be improved.
I do think measures to look at it are timely for a bunch of reasons, because of what you see in our report and in others and what we read in the papers, which is not really a good way to devise legislation but a good reminder of how complex this is. The only caution I have on it, senator, is just the need for prudence and being careful on this because you want to get it as right as you can. If the effort is to give assurances to parliamentarians and Canadians that we have good reviews and improved oversight, then it can be designed that way. On the other hand, if it's ``gotcha'' journalism or political expediency, I don't think it will work because the issues are too important and too rife for abuse if it becomes that.
I think that if senators and MPs set out with that objective, I don't see how it can't work hand-in-glove with an operation like SIRC. I think it could be quite complementary. My hope and my offer, as this goes ahead, if that's where it ends up, is that, both unofficially and in the sense of between staff and the clerk and others and researchers or in appearances before committees and so on, that we just offer ourselves to give you our experience of what works well for us. We have done some research even on how it has worked in other jurisdictions, which is good. Especially in the parliamentary traditions that we've seen elsewhere, that we've built our own Westminster model on, there are things to learn. You don't have to recreate the entire wheel; you can just recreate the part of it that's missing.
The Chair: We can't forget that this committee meeting is part of parliamentary oversight.
Mr. Strahl: That's true.
The Chair: This is an opportunity in itself. We should recognize that. Perhaps we need a little bit more time than an hour, but it does provide the forum.
I'd like to, if I could, explore a new area — and you've mentioned it a number of times — the new warrant power that you have acquired. We've only got a couple of minutes left, but perhaps you could explain exactly what that does. Does it strengthen and assist the privacy of Canadians? That's one of the ultimate principles here — the privacy of Canadians and ensuring that it's adequately protected. Perhaps you could expound on that.
Mr. Strahl: We did a review of the new section 21 warrant power, and put that as part of our report. In 2009, the Federal Court granted CSIS's request for new warrant powers. It was really designed to maintain coverage of targets who represent a threat to Canada when they travel overseas, so that was the purpose of the warrant power. We examined how CSIS managed that new power and tried to evaluate how useful it was and whether it was open to abuse since they've had that power. It's a relatively new one.
It needs to be said — and it was part of a question earlier — that CSIS often leverages the assets of the Five Eyes signals intelligence community when it needs to acquire information. This was raised by Judge Mosley in his public report here recently, and he has given us some classified information that our legal department is reviewing as well to see how much we can talk about in a proper way. There are clear advantages we found and operational benefits to leveraging those third-party assets. There is really no other way to do it. The arrangement, though, carries the risk that I talked about earlier. The risk is that the Five Eyes partner might act independently based on that CSIS information. So what we've said in regard to this new warrant power is that CSIS has developed a regime of caveats, assurances and protocols with only one of the Five Eyes partners.
These Five Eyes partners are our best friends. It's not like these people are problematic in our world. But for CSIS, what we've said to them is they need to extend those caveats, protocols and assurances to the others, just so that the same high standard that you've got with one partner is extended to everyone. We trust our allies, our closest allies — we have to — but if there's no protocol in place, if there are no assurances, no documentation really of what CSIS wants done with that information once it's handed over, then it just raises the question of what will happen to the information. What we've said is that you've done it really well in one example, so extend it to the rest and you'll be in good stead.
The Chair: Thank you very much. I'd like to say to you on behalf of all colleagues here that we recognize the work you do on behalf of Canadians and how important it is to each and every Canadian in respect to their privacy. I've got to say I appreciate the commitment you've made, Mr. Strahl, having served in cabinet and now doing this on our behalf.
We are very pleased to welcome to the Standing Senate Committee on National Security and Defence the new Commissioner for the Office of the Communications Security Establishment Commissioner, the Honourable Jean- Pierre Plouffe; and the Executive Director, Mr. William Galbraith.
Gentlemen, you are tasked with an extremely serious mandate — to oversee the operations of the Communications Security Establishment and ensure it's operating within the law and protecting the privacy of Canadians. I was pleased to read in your annual report that since 1997, 92 per cent of the commissioner's recommendations were accepted and implemented, and I have to say that's a very impressive record. However, we also note that there are still many challenges to be overcome in the area of security and intelligence oversight.
Before we get into those issues, I understand you have some opening remarks. I would invite you to proceed with those, and then we'll open the floor to questions. We have one hour for this panel. Please proceed.
Hon. Jean-Pierre Plouffe, Commissioner, Office of the Communications Security Establishment Commissioner: Thank you, Mr. Chair, vice-chair and committee members.
[Translation]
Mr. Chair, if you have no objection, I would like to make my presentation in French, the language of Molière, as they say.
First of all, thank you for this opportunity to meet with you so soon after I took up my position. My appointment as Communications Security Establishment Commissioner for a three-year term came only last October 18.
It is a part-time position; therefore it seems only fitting for me to be accompanied today by William Galbraith, the executive director of my office, who has a wealth of experience in intelligence matters.
Allow me first to introduce myself before I talk about my mandate and make some comments about certain subjects of interest. I have a law degree and a master's degree in public law, meaning constitutional and international law, from the University of Ottawa.
I began my legal career at the Department of National Defence in the office of the Judge Advocate General. After nine years of service and postings in Germany, Winnipeg and Ottawa, I left the regular forces in 1976 with the rank of Lieutenant Colonel, but remained as an active reservist until 1996. During those years, I acted as a military judge on a number of occasions.
In civilian life, I worked in a law firm. I was chief of staff of a federal department — I will not tell you which one — and was then appointed a judge in the Court of Quebec in 1982, a judge in the Superior Court of Quebec in 1990, and a judge in the Court Martial Appeal Court in 2013.
My role as a judge over these last 30 years has meant that I have had to decide on cases impartially, independently and according to the law. In 2000, the Department of National Defence appointed me to the committee that selects military judges, a position I occupy to this day.
The mandate of the commissioner is described in section 273.63 of the National Defence Act. But first of all, I would like to point out that the commissioner is appointed by the Governor in Council for a maximum term of five years ``during good behaviour.'' You will note that the expression ``during good behaviour,'' or ``à titre inamovible'' in French, is the same expression used when appointing judges.
Why? I feel that it is to ensure the independence of the commissioner, as it is for judges. In that light, since 2008, the office of the commissioner has been an autonomous, independent organization with its own appropriation from Parliament.
What is the commissioner's mandate? First, to review the activities of the Communications Security Establishment, or CSEC, and attest to its compliance with the laws of Canada.
Second, to investigate any complaint when the commissioner deems it necessary. Third, to advise the Minister of National Defence and the Attorney General of Canada of any CSEC activities that the commissioner believes may not be in compliance with the law.
Finally, the commissioner reports annually on his findings to the Minister of National Defence. In turn, the minister submits the reports to both the House of Commons and the Senate. I hope that you have a copy of the 2012-13 annual report in your hands; it was our intent to provide you with a copy. You will see that, naturally, it was signed by my predecessor, Commissioner Décary.
The commissioner's annual report and my office's website, both of which are public, encapsulate the commissioner's role, activities and recommendations very well. The commissioner is called on to play an absolutely fascinating role in reconciling the right of Canadians to have their privacy respected with, equally importantly, the need to gather information from overseas in order to ensure the security of Canada. I would add that, to play my role properly, I have to fully understand the mandate, and the limits to that mandate, of CSEC, the organization over which we have surveillance, if I may put it that way.
In summary, CSEC's mandate is as follows: to acquire electronic information from overseas; to help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada; and to provide technical and operational assistance to federal law enforcement and security agencies such as the RCMP and CSIS.
The information released by Mr. Snowden provides the media with often sensational news. Unfortunately, in my view, the information is all too often misquoted or used out of context, thereby becoming bad information.
In that light, one of the stated objectives of my office is to help to clarify and, if necessary, to correct that information before it becomes a myth. However, I acknowledge that we are dealing with a complex area because of certain ambiguities in the law and because of the constantly evolving technology and the growth of CSEC.
The CSEC employees whom I have met up to now seem motivated by a sincere desire to meet their work objectives under the law. It is my role, therefore, to make sure that they are working within the law and the directives of the Department of National Defence and that, within their mandate to provide assistance to federal law enforcement and security agencies like CSIS, they are not overstepping the limits that the law imposes on those same agencies.
Finally, a few words on a current matter, the recent ruling on CSIS warrants handed down by Federal Court Justice Mosley. I know that Mr. Strahl talked to you about it just now. I am going to discuss it from a more legal perspective in order for you to understand the crux of the ruling and to get an idea of how the office of the commissioner previously intervened.
In 2009, Justice Mosley issued a warrant allowing CSIS, with CSEC's assistance, to intercept the communications of two Canadians overseas, and this is very important, from Canada. Warrants of this kind have been renewed on several occasions since. In the 2012-2013 report by my predecessor, of which you have a copy, Commissioner Décary recommended that, and I quote:
CSEC advise CSIS to provide the Federal Court of Canada with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS.
Why was this recommendation made? To ensure that the assistance provided by CSEC to CSIS is in conformity with the law and with the limits of the warrant issued by the Federal Court.
Following the recommendation, Justice Mosley summoned counsel for CSIS and CSEC once more in order to provide more explanation on the matter. In his recent ruling, Justice Mosley found that CSIS had breached its duty of ``candour.''
How? In what way was this duty of candour breached? By not disclosing information that was relevant to the exercise of jurisdiction by the Court and to the determination by the Court that the criteria of investigative necessity and the impracticality of other procedures had been satisfied. That is all very legal, but it is what Justice Mosley stated in the public version of his ruling. There is also a classified version of the ruling.
In its application for a warrant to be issued, when it requested a warrant, CSIS failed to mention that, through CSEC, CSIS had requested allied agencies to intercept the communications of the two Canadians abroad.
That is the ruling, which I have tried to summarize as best I can. The ruling touches on activity on several levels: co- operation between CSIS and CSEC; co-operation between CSEC and our allies, especially the NSA, the National Security Agency, in the United States; and the co-operation between my office and the agency charged with overseeing the activities of CSIS, the Security Intelligence Review Committee, chaired by Mr. Strahl. My predecessor has previously referred questions on this matter to the chair of SIRC, questions that were submitted for him to deal with at his discretion in the manner he deems most appropriate.
In that context, I think my office fulfills its responsibility of conducting reviews effectively, and the co-operation between review and surveillance agencies such as my office and SIRC has a positive impact.
In closing, let me commend my team, including executive director Mr. Galbraith, for doing an outstanding job. These people are competent, hard-working, conscientious and dedicated to their mission. They have very ably helped me enter this fascinating but very complex world of foreign intelligence.
I am also grateful to John Forster, chief of CSEC, who has set up a series of briefing sessions, enabling me to better understand CSEC's role and activities. However, I know that this is only the beginning of what I need to learn.
That concludes my presentation. We will be happy to answer any questions you may have. As I said, if you do not mind, I will pretty much rely on the executive director to answer a number of your questions, since I only started the position recently.
[English]
The Chair: Thank you very much for your comments. I want to say we realize that you have just taken over responsibility, and I can say for all of us that we're very pleased that you have. It's going to be an interesting position to have for the next three years but also in many ways I think very challenging.
I'd just like to ask one question, if I could, and direct it to Mr. Galbraith. Once again, it goes to the privacy of Canadians and to ensure that privacy is being protected and recognized.
How does CSEC treat the metadata, which would include information such as Internet protocol, addresses and telephone numbers? Is it treated as private communications for the purposes of your responsibilities?
J. William Galbraith, Executive Director, Office of the Communications Security Establishment Commissioner: Metadata is not defined as a private communication. However, some metadata can identify individuals. We examine metadata that carries identity with it, similar to what would be in a private communication, and examine CSEC's activities so that when they are handling metadata, they are taking adequate measures to protect information that can identify Canadians.
They are using metadata to examine and identify foreign entities of foreign intelligence interest. They cannot use metadata in the same way that they would be using private communications. It is for, as I said, helping them identify entities of foreign intelligence interest, according to Government of Canada intelligence priorities, but any information that CSEC collects that identifies Canadians must be dealt with in a way that protects it and that it is destroyed after a certain period of time. When we are examining those activities, that's what we're looking for in the various databases and where they keep it and how they identify it.
[Translation]
Senator Dallaire: Mr. Plouffe, I would like to know why we are concerned about CSIS, which now has some rather exceptional warrants and calls on SIGINT in particular from the group of five. Why would you be concerned about using your resources for their security objectives, knowing that you have both a domestic and international security mandate, while they are very limited in their international capacity? I still have a hard time understanding why it is an issue.
Mr. Plouffe: CSIS' territorial jurisdiction is limited to Canada, whereas CSEC, which we are monitoring, has foreign jurisdiction. If CSIS thinks it needs the help of allied countries to carry out its activities, it absolutely must go through CSEC, because CSEC deals with the allies.
That is what happened in the Mosley decision. At one point, CSIS asked for CSEC's help because the two people in question were abroad. Unfortunately, at that time, CSIS did not tell Justice Mosley that they wanted to ask for the help of our allies, meaning the Five Eyes.
CSEC can legally call on our Five Eyes allies. However, in this case, the court issued a warrant clearly stating that all activities had to be carried out in Canada and from Canada, not abroad. That is why Justice Mosley of the Federal Court ``found that CSIS breached its duty of candour by not disclosing information that was relevant to the Court''.
The judge issuing the warrant in question must make sure that he has jurisdiction first of all. A court in Canada has territorial jurisdiction limited to Canada only, in principle. Second, the judge issuing a search warrant must also ensure — I issued a number of them in criminal law and it is the same thing—that no other investigative tools are already place. In this case, there may have been one, in other words asking the allied countries for help.
That is why Justice Mosley said that they should have told him about it, because he might have not issued the warrant. He might have issued it anyway, we will never know. That is sort of the idea. Does that answer your question?
Senator Dallaire: Yes, the complementary nature of the situation seems normal to me, but I understand the definition of responsibilities, which would need to be reviewed, of course.
Mr. Plouffe: Yes.
[English]
Senator Segal: I wanted to ask about the mismatch that may exist in terms of your statutory mission and what it is you have to protect Canadians from in terms of the potential excess that might exist or transpire. I think I've read documents suggesting that the agency over which you have an oversight responsibility will have employees numbered in the thousands. The nature of the technology they use, as everybody in the room will understand, has changed markedly, producing a massive access point. I suspect that, as is often the case, your own organization before your arrival and since has not expanded in any way commensurate with that supervisory process. Most Canadians actually are delighted that we have a strong security establishment, both CSIS and CSEC keeping us safe and seeking to work with our allies to do the same. Most Canadians feel there must be a very firm and cocked eye on their activities. In the particular circumstances of your appointment, we are truly fortunate that you carry that burden on behalf of the law, our Constitution and the people. Having said that, do you think the mismatch between the resources allows you to actually do that, despite your own and your staff's extensive hard work and effort, in any way commensurate with the actual challenge itself?
[Translation]
Mr. Plouffe: Thank you, Senator. I was expecting the question about the size of my office compared to the size of the CSEC office, which has thousands of employees.
Based on the current mandate, I think we have enough staff to carry out our mission. I also asked myself the same question when I took office. It is actually a point for reflection and, in the coming months, I will check to make sure that we have the proper resources based on the reviews under way.
Let me say that the number of staff members in our office has gone up from eight to 11 over the past 5 years. In addition, we use five or six contract employees, two of which conduct the reviews. Right now, I think we have enough staff to carry out our mission. Now, if we had to broaden our mandate, we would be dealing with a different kettle of fish. It would be completely different.
[English]
Senator Mitchell: This question would apply to you and to SIRC. I'm interested in knowing, given that you have audit function, to what extent you rely upon CSEC to give you the information. That is to say, do you have direct access to their data or do you have to go through them, and if so, how do you know you're getting everything?
Mr. Plouffe: I'll let the executive director answer. I have a prepared answer here, but he'll give it to you in more detail. The answer is yes.
Mr. Galbraith: The process of review starts with a particular activity being identified to be reviewed. At the beginning of that review, we will request information from them — the documents. We will request on what legal basis they are conducting those activities. We will ask perhaps for a briefing from the individuals responsible for that particular activity. When we have gathered that data, that is examined. We will select individuals perhaps for interviewing — analysts at the working level and managers. We will compare that with the documentary data we have. Then, we will go to the data systems and the computer systems that they have for the particular activity and verify that the information they provided is what is in the system — is what was indicated.
Mr. Plouffe: We have full and direct access to those systems.
[Translation]
Senator Dagenais: Thank you for your presentation, Mr. Plouffe. I will let you decide whether you or Mr. Galbraith will answer my question.
For some time now, the OCSEC has requested amendments to the National Defence Act. Could you tell me what those amendments are and, if applicable, why do you feel that those amendments are needed?
Mr. Plouffe: Mr. Galbraith, our director, is in fact in a better position to answer your question, because the amendments were introduced a few years ago and are sitting on someone's desk somewhere right now. I was told that the amendments to the National Defence Act — which we are interested in — will be reactivated. Apparently, we can hope to see them passed in 2014.
Mr. Galbraith: Every commissioner looked at the act itself and the activities. They identified ambiguities in the act, in particular the definition of ministerial authorization, activities or classes of activities. The interpretation of the Department of Justice was different from the interpretation of the commissioner. So, in order to clarify those ambiguities, the commissioners requested amendments to ensure the activities and the act are aligned, and to clarify the possibility of checking, reviewing CSEC's activities according to the act.
Mr. Plouffe: Does that sort of answer your question?
Senator Dagenais: Yes, that is great. Thank you, Mr. Galbraith.
[English]
Senator White: I apologize for being late.
Thank you very much for your presentation. My question actually surrounds, I guess, some of the activities of Mr. Snowden. I know in some other countries — Australia is an example — they're having some serious dialogue around how they counter that or how they engage potential employees through integrity testing and other things more often than they probably were in the case of Mr. Snowden, or else he wouldn't have gone as far as he had.
Without being too specific, for the sake of your response, just so see whether or not you believe there is more that can be done within your agency, and whether or not you have done more to try and ensure that doesn't occur, at least at this level.
Mr. Galbraith: That would be the sort of question that would be directed to CSEC itself.
Senator White: In the case of CSEC, I know that was discussed; I'm sure those discussions have taken place.
Mr. Galbraith: Yes. In the past, there have been reviews of security at CSEC, but that is largely an internal security matter for CSEC to be dealing with.
Senator White: But certainly it would be considered for audit purposes or for oversight to ensure they're meeting some level of expectations, or no? I'm not trying to be argumentative. I don't have CSEC here right now.
Mr. Galbraith: In terms of dealing with compliance with the law, the commissioner is looking at the foreign intelligence activities, the three primary mandates that CSEC has according to the law, which is the focus of the commissioner's activities, including the protection of privacy. Internal security is something that rests with and is the responsibility of the chief of CSEC.
Senator White: So it wouldn't be considered by you?
Mr. Galbraith: No, the commissioner is not dealing with that.
Senator Dallaire: Because you were sitting there, you heard the discussion we had about legislative oversight of CSIS. The question that we raised or tried to explain was that there is such a panoply of intelligence capabilities, and even capabilities being developed within departments now with security officers and so on, plus the extraordinary sourcing and cross-referencing of capabilities, and the real threats inside the country and beyond that we face now because it's no more the sort of nearly simple Eurocentric, Cold War type situation.
Do you have an objection that we create a capability of the legislative? The executive, I have no problem with that. They've got their job to do. But I'm talking about the legislative, not only for the protection of civil liberties of our people but to get a better grip on the overall threat assessments and whether or not those interactions are as effective as they can be with all the capabilities that you should have.
[Translation]
Mr. Plouffe: If I understand your question correctly, you are asking whether a parliamentary committee would be useful.
Senator Dallaire: A parliamentary committee that would have access to all classified materials and would not be kept in the dark the way we are here.
Mr. Plouffe: That is a political decision, but I will still give you an answer.
In the military, we are quite direct; as veterans, we understand each other. A committee might be useful because parliamentarians would then be more committed. It is always desirable to have parliamentarians more engaged in security issues.
Based on what is happening in the United States, we can see that this is not a panacea. If we look at the United States, they have congressional committees, but those committees of parliamentarians were not able to prevent the excesses now being discussed in the media since Mr. Snowden's revelations.
In short, my answer is that before we think about striking a very specific committee of parliamentarians on the matter, perhaps we could consider using the existing resources more appropriately, including your committee and your counterpart House of Commons committee. I think that we could do a great deal with that. Later, perhaps once that has been done and, if we realize that it is not enough, we could consider a committee of parliamentarians. But as I said, it is not a panacea; it is not absolute.
[English]
The Chair: If I could, I'd like to follow up on Senator White's question in respect of the employees and ensuring that the employees are adhering to the guidelines that they are required to follow, and ensuring that they meet the security clearances and are abiding by that security clearance so that we don't get a situation that we have seen with Mr. Snowden.
If your office does not ask to look and ensure that the governance is in place or improved in respect to the integrity of the system that's been set out, who does? Who actually overlooks this organization to ensure that the employees are doing what they're supposed to be doing and respecting the security that, as Canadians, we've asked and paid them to respect? Who actually overlooks that?
Mr. Galbraith: CSEC has a system of internal compliance rules that, according to the managers, have to ensure that employees are complying with internal policy. We have a review under way of CSEC's compliance monitoring regime inside the organization. That focus, however, is on CSEC's compliance with the law, with their mandates for foreign intelligence collection, for cybersecurity and for assistance to law enforcement and security agencies.
But the internal security, the issue that was raised by Senator White, is very much the responsibility of the chief, ultimately the minister who is responsible for CSEC. For the commissioner to get into the internal security issues of personnel beyond the compliance issues that we have been focusing on would be something extra. They have an internal security section; they have comprehensive internal security policy and instructions, and the managers are tasked with ensuring that.
The Chair: So the question obviously has to be put to CSEC directly and in respect to exactly how they're adhering to it and if changes are being made.
Senator White: To be fair, I was looking for some comfort or confidence afterwards that we wouldn't find ourselves in a similar situation as the U.S. I have to be honest; I don't feel any comfort or confidence at this point. I am looking to hear somebody say that we've recognized and spoken with our U.S. counterparts and have identified areas of increased integrity testing, as an example, which has been quite successful in some countries. So whoever we put these questions to, I would like to actually have a response, whether that be the minister or CSEC directly, just a response that tells me that we're not going to find ourselves with the same nightmare as the U.S. and that we're being impacted by as well.
The Chair: That wasn't a question; that was a statement?
Senator White: Yes. I put it in the form of a question.
The Chair: We'll go for another question. Senator Mitchell.
Senator Mitchell: Thank you, chair, and a question it will be.
Senator White: It's like Jeopardy.
Senator Mitchell: You want the answer. CSEC is mandated to fulfill its intelligence activities within the priorities or consistent with the priorities of the Government of Canada. You must audit that. Could you give us some idea of exactly how those priorities are established for CSEC and how they're communicated to CSEC?
Mr. Galbraith: There is a process within government to determine the government's intelligence priorities. Part A of CSEC's mandate is to collect the foreign intelligence in accordance with Government of Canada intelligence priorities. Those priorities will be set and decided on by cabinet. There is a ministerial directive that would provide the priorities from the Minister of National Defence to CSEC, similar to what I believe Mr. Strahl indicated for SIRC earlier on.
Senator Mitchell: So you don't question those priorities. Your responsibility is to ensure that they're being adhered to and applied commensurate with the government's intentions.
Mr. Plouffe: Exactly.
Senator Dallaire: I have been meeting with diasporas in this country that come from countries that are still in conflict and where the connections are quite strong by family, politics or so on. There is recruitment going on; there is interfacing going on with some of these diasporas and elements in those countries that are still in conflict. You have the SIGINT responsibility, and CSIS has access to your information. I'm taking for granted that is internally also. Do you have a whole separate set of protocols to ensure that the civil liberties of people in this country are not being stepped upon by a perceived threat that might be created within the community here to take action overseas?
Mr. Plouffe: I'll let Mr. Galbraith answer, but CSEC has the responsibility for the agency SIGINT, as such.
Senator Dallaire: Okay, the total SIGINT responsibility.
Mr. Galbraith: CSEC would be collecting its intelligence according to the intelligence priorities determined by the government. Counterterrorism, one would expect, would be a priority, but the reports that CSEC composes from the foreign intelligence that it collects are distributed to Government of Canada clients. If there are threats to individuals in Canada, if that's what you were —
Senator Dallaire: No, the individual in Canada becoming a threat.
Mr. Galbraith: That's domestic security intelligence, something that would be dealt with by CSIS.
Senator Dallaire: You feed them that SIGINT for that assessment; correct?
Mr. Galbraith: There may be some reports that CSEC will issue that will address those, that would deal with those issues that would go to CSIS or others.
Senator Dallaire: Are there protocols for the protection of individuals in those diasporas, as an example in regard to between CSEC and CSIS that you've been monitoring and have not found to be wanting, or maybe wanting under this era of the Patriot Act and all these things that have been going on?
Mr. Galbraith: CSEC would not direct its activities to anyone in Canada. That would be an activity for CSIS, the security intelligence, the threats within the diasporas, within the immigrant communities in Canada.
Senator Dallaire: Yes, but you're gathering the information.
Mr. Galbraith: The foreign intelligence.
Senator Dallaire: It says internal, too.
Senator Segal: I wanted to thank Mr. Plouffe for his suggestion that we should work with the structure we have. The difficulty of course is that the structure we have, whether it's on the House of Commons side or the Senate side, has no access to any substantive information that is in any way classified. I understand why that is and I respect those reasons, but that puts us, in our oversight role, at a distinct disadvantage from the United Kingdom, France, Germany, Australia, the Netherlands and a whole bunch of our NATO allies, who have asked, as Sir Malcolm Rifkind asked when he was last here, why would Canada be the last country to have legislative oversight when the rest of us have found a way to make it work?
I'm not suggesting you're against legislative oversight. I'm saying that the committees operate and, for example, in the last five years, when I've been involved in various of these committees, not once has anyone shared with us the nature of the metadata assignment. It strikes me as a completely rational assignment, but it has never come up in any constructive way for this committee to be helpful on.
I thank you for the suggestion but I think, upon reflection, you may understand why our level of frustration is where it might be in the context.
That's a question, so feel free to respond.
[Translation]
Mr. Plouffe: I understand, senator, and I do not disagree with what you are saying. I can sense a bit of the committee members' frustration because you do not have the security clearance so that we can go into detail and explain a whole host of things to you. If we could, it would be much easier.
[English]
The Chair: I would like to go into another area, if I could, because we're coming to a close here fairly quickly. I would like to refer to page 20 of the annual report, highlights of the six reviews submitted to the minister in 2012-13. It states:
I had no concern with respect to the majority of the CSEC activities reviewed. However, a small number of records suggested the possibility that some activities may have been directed at Canadians, contrary to law. A number of CSEC records relating to these activities were unclear or incomplete. After in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law.
Then it went on further, and I'm not going to quote it but there were some recommendations that were forwarded to the chair of SIRC on some general points, with some recommendations.
Could you perhaps inform us exactly where that stands at this particular time? I would direct that to Mr. Galbraith.
Mr. Galbraith: Chair, a follow-up review is under way as a result of this. What SIRC would be doing with the questions that Commissioner Décary had referred to him would be answered by Mr. Strahl or directed to him to follow up.
When the review undertaken dealt with exchanges of information between CSEC and CSIS, the commissioner's office can follow that right up to the point of where it goes over to CSIS. At that point it was the questions that were referred to the chair of SIRC from the CSE Commissioner, from Mr. Plouffe's predecessor, to follow up as they deemed appropriate. Where that is on the SIRC examining or picking that up would have to be directed to the Chair of SIRC. Commissioner Plouffe has reviewed the current work plan that we have in place now, and there is a follow-up on these activities, trying to ensure that the recommendations made with respect to clarity of information between CSEC and CSIS is in fact being corrected by the agencies.
Mr. Plouffe: Most likely that means in the next annual report there will be some mention of the follow-up. There's a review under way right now, and in the next few months we will have some answers, and then we will report to the Minister of National Defence. This should also be included in my next annual report.
The Chair: Sir, we'll look forward to finding those answers in the next report.
I see it's seven o'clock, so I would like to thank our witnesses for attending here this evening. It has been very informative, and I'm sure that we will want to do this again. I think it's very insightful for Canadians to hear exactly what your responsibilities are, what your duties are to Canadians, and we want to ensure that all Canadians are aware of the importance of the work you do. So thank you very much.
With us for our final panel this evening are Chantal Bernier, Interim Privacy Commissioner; and Christopher Prince, Strategic Policy Analyst in the Office of the Privacy Commissioner of Canada.
Earlier today, we heard from the Chair of the Security Intelligence Review Committee, Mr. Strahl, and from the Office of the Communications Security Establishment Commissioner, Commissioner Plouffe.
We are most pleased to welcome you, Ms. Bernier and Mr. Prince, to our committee. We understand you have some opening remarks.
[Translation]
Chantal Bernier, Interim Privacy Commissioner, Office of the Privacy Commissioner of Canada: Good evening, Mr. Chair and members of the committee. Thank you very much for your invitation to present our views on the annual report of the Security Intelligence Review Committee, SIRC, and the implications upon privacy of information sharing.
I would like to begin by stating that I believe, and this has been raised in your discussions this evening, we need a societal debate to recalibrate the rapport between privacy and security.
For example, Mr. Strahl said:
[English]
. . . any time there is an open debate on any number of issues, it's a good day.
[Translation]
I agree with that proposal, and this debate can only happen with the involvement of Parliament. I would like to congratulate you on holding this detailed study into SIRC's excellent annual report.
I would also like to express my appreciation for the number of times during this discussion I have heard you voice your interest in respecting privacy.
[English]
First let me describe the mandate of the Office of the Privacy Commissioner of Canada. Our office is mandated with overseeing compliance with both the Privacy Act, governing the Public Sector and the Personal Information Protection and Electronic Documents Act, which governs the private sector. The Privacy Act covers the personal information practices of Canadian security agencies.
There are some exceptions that authorize security agencies to collect, use and disclose Canadians' personal information and to deny individuals from accessing their personal information in certain circumstances; but these are still all subject to review by our office. By way of example, we investigate complaints, we review privacy impact assessments, and we analyze policies upon which we provide you advice.
At the same time, we also note the related mandates fulfilled by SIRC and the Office of the Communications Security Establishment Commissioner.
It is appropriate that the specialized area of intelligence-gathering come under specialized review. However, it is a matter of concern — and we have heard this tonight — that both review bodies that I have just mentioned have expressed reservations in relation to the limits of their mandates.
I would draw your attention to pages 16 and 17, for example, of the SIRC report quoted a moment ago by the Honourable Chuck Strahl, which notes that ``. . . the once-solitary worlds of Human Intelligence (HUMINT) and Signals Intelligence (SIGINT) have increasingly merged'' and that increased collaboration between these domains can result in ``erosion of control over the information shared.''
The Honourable Robert Décary made a related observation in his last report, noting ``. . . where CSEC and CSIS cooperate and conduct joint activities, my office and SIRC do not have an equivalent authority to conduct joint reviews.''
Reviews by both SIRC and the CSE Commissioner point to large-scale, ongoing information sharing between the members of the intelligence community that are effectively out of scope for their review, partly because there is some information they cannot readily access from the agencies they oversee and partly because they cannot exchange information on cases with one another.
These concerns over lack of clarity and control were echoed very recently in a declassified order by the Federal Court of Canada where Justice Mosley highlighted a serious ``lack of candour,'' as the Honourable Jean-Pierre Plouffe has just mentioned.
Together all of these observations point to questions regarding the overall governance for accountability of our national security activities, including the massive collection, use and disclosure of Canadians' personal information, both nationally and abroad.
We believe the current Canadian system of intelligence oversight is now proving overly compartmentalized and insulated by statute. This seriously undercuts accountability and may threaten privacy. What we do not want to see is a repeat of events that led to a decade of commissions of inquiry in Canada; rather, what we need is a better-integrated approach to the review of intelligence and security at the national level.
Improving accountability for intelligence activities requires broader oversight to ensure compliance and strengthened reporting mechanisms to inform Canadians.
I have noted the interest of this committee with respect to oversight, and I am pleased to tell you that in this regard my office intends to provide analysis and concrete recommendations for Parliament's consideration in the new year. In fact, we are about to consult both the CSE Commissioner and SIRC on these proposed recommendations. They will, therefore, have the benefit of their input once you see them.
[Translation]
I would leave you with one concluding thought — one picked up in the SIRC report you are studying. Many in the security or commercial sectors often contend that the right to privacy has vanished. It is important to dispel that simplistic assertion: the right to privacy is a visceral need, central to personal integrity, and the protection of this right is essential to a free and democratic society.
Respecting this right within the new political and technological framework of intelligence activities is therefore the fundamental question for national security in the 21st century.
In short, as mentioned in the introduction, we believe that, in a new era of networked intelligence and surveillance, characterized according to SIRC's report by the ``inevitability of technology interconnection'', Canada therefore needs a networked approach to oversight and review.
Thank you and I look forward to your questions.
[English]
The Chair: Thank you very much, Ms. Bernier. I would perhaps like to ask the first question, if I could. I asked it to our previous witness as well.
The CSE Commissioner's 2012-13 annual report referred to the sharing of metadata. Would that include information such as Internet protocol addresses and telephone numbers, between CSIS and CSEC? I think you heard that question.
You have just announced that you are going to come forward with recommendations, and you have obviously hired expertise to be able to come to some conclusions. Have you found that there is a current lack of privacy protection afforded under Canadian law to metadata? What more can be done to ensure that privacy, if there is a weakness?
Ms. Bernier: In fact, that is not quite the focus we have adopted. In this analysis you will receive, hopefully in the coming weeks, we have looked, from both a theoretical point of view and an operational point of view, at the current structures and whether they correspond to the manner in which intelligence gathering has changed — changed in relation to the nature of the threat and changed in relation to the technological capacity. Taking into account how the intelligence-gathering context has changed, the question is whether the oversight structure for this intelligence gathering corresponds to the current challenges.
We are addressing these questions with experts, yes, as you say, and we will make suggestions to you — in fact, recommendations — to modernize the oversight structure.
So this was not a case analysis of specific activities.
[Translation]
Senator Dallaire: We have barely discussed the flow of information since the start of the meeting. Risks are involved in this flow of information that compromises our information sources. Are you in a position to determine whether people are disseminating appropriate information to meet today's complex security needs?
Or is it that once there is concern that everyone may have access to everything, do they close themselves off and communicate less information and information analyses to other agencies or other departments that would need it?
Ms. Bernier: I could not say that we have done a specific study on that, to see whether there is an effect that inhibits the exchange of information. Both with individuals and institutions, we are seeing an increased awareness of how vulnerable information is on current technological platforms. For us, we are seeing that there is a discipline developing that corresponds to the vulnerability of information.
Having said that, as you said so well in the start of your question, the capacity of disseminate information quickly at an unprecedented volume and scale is basically forcing us to reconsider protection because the risk is changing.
So institutions will necessarily need to adopt new protections, new sharing practices to ensure that risks to privacy are well managed, that only relevant information is disseminated and is therefore justified, and that it is proportional. So, Mr. Abdelrazik's case, which is mentioned in the report, clearly shows how inaccurate information was disseminated and was disseminated too widely. The right to privacy was violated from the start and, as we know, the impact was significant.
[English]
Senator Segal: May I say, with the greatest of respect, that I found your statement to be quite optimistic. Let me give you a perspective upon which I would like your comment, if I may.
I would say 9/11 basically reversed the onus. The search for information that could protect our society from terrorist activities really took our intelligence efforts into new directions, using the best of technology for those purposes, with which I don't in any way disagree.
When I hear your report and the work that your organization is doing, and when I hear what was said by the SIRC folks when they were before us about whether their law is sufficient to allow them to do the protective job that we apply, when I hear the commissioner say that there are some constraints that may be problematic, my fear is that the vacuum cleaner is moving its way through society. I don't question the intention of the people in charge of the pieces of the vacuum cleaner, but it's not my sense that there is an integrated capacity to assess what it's doing.
My bias, so it's clear, is that society is based on freedom; it's based on the freedom from fear. There is the fear of the terrorist act, which requires our police and intelligence agencies. The vast majority of the people who work for them I am sure are honest and hard-working people, but the other fear is the fear that happens when people don't know what information people have about them and, more important, whether that information is going to be deployed honestly and honourably according to the law, and in this country that means the Charter of Rights and Freedoms.
Do you not worry that while the folks running the vacuum cleaner have been very intense in getting access to the money and the technology and the resources necessary to do the job — and I don't have any difficulty with that — those of you who are working on the other side of the coin, to protect the public from excess and imbalance, are really running very, very hard to keep up? In your heart of hearts you can't possibly imagine, I doubt, that you're actually keeping up with the nature of the threat to people's privacy and freedom that may in fact be going on?
It's a difficult question. I don't mean to be unfair, but I would like your views on that.
Ms. Bernier: It is a very fair question and yes, I do worry. I absolutely do worry.
I was very keen to listen to the question posed to the Honourable Jean-Pierre Plouffe whether he has the resources, being as small as his office is in relation to CSEC. He said that he himself is looking at that. I believe that is a question that all of us have. Yes, I absolutely worry.
The changes in this area are so deep and so fast that clearly the issue of resources presents itself inevitably.
Senator Mitchell: I'm very interested in knowing whether everything you do is of necessity or by definition or by legislation after the fact or when a great deal of damage could well have already been done, or are you in a position to know what they're doing before they do it and to anticipate problems?
Ms. Bernier: The instrument we have for that is the privacy impact assessment review, and I attach tremendous importance to it for precisely the reason you raise. The privacy impact assessment is an analysis that the federal institution that develops a program or any measure that has privacy implications must do to assess, one, the privacy risks, and two, the mitigation strategies, and they must submit that privacy impact assessment to our office for review. We make recommendations, and we have been able actually to bring institutions to change, to remove parts of initiatives that we felt were overly intrusive. That instrument goes exactly to your point. It is the one area where we can act beforehand.
Senator Wells: The balance between gathering intelligence, which is important to Canadians, and the rights of privacy, which is where you come in, I recognize is a push and a pull. What are the greatest points of conflict for your office in dealing with Canada's intelligence structure? What frustrates you the most?
Ms. Bernier: I would say what frustrates us the most is the force of fear that may blind us to the consequences of privacy intrusion. In order to bring some discipline to the discussion, we have developed a framework of analysis called A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century. You can find that document on our website.
What we seek to do in that framework of analysis is precisely to address the tension that you refer to, which is not easy to decide, so we are anchoring it in some very specific steps. There are four steps, the first one being the legitimacy test, where we assess whether it is indeed legitimate, precisely in relation to balancing public safety, national security and privacy, and making sure we get to a good result for all, whether it's effective, whether it's proportionate.
Once we have established with our very strict criteria that it is legitimate, then we look at whether the information gathered is kept secure, protected. Is there an internal compliance mechanism to keep it secure? Finally, is there an oversight mechanism that makes the organization that collects the information and uses it report to Canadians or to Parliament?
That document seeks precisely to shed some light on the very difficult tension and to address the power of fear. It brings everything; it grounds the issue in empirical evidence.
Senator Wells: May I ask a quick follow-up to that? Putting it in a quantifiable matrix, as that's what it seems to be, is that difficult when oftentimes you have to make an assessment based on simply what you hear?
Ms. Bernier: And what could be, because there's a lot of projection in the future. So, for example, the legitimacy test includes effectiveness, but it has to be likelihood of effectiveness. There are issues where we go to the institution and we say, ``What makes you think this will work, that this intrusion of privacy will work in relation to your public safety objective?'' They will say, ``We've done testing. We have gathered some evidence from some other countries,'' and so on and so forth, and they present a cogent case. When the case is cogent, then we realize that indeed they have done what they should do to project — at the very least project effectiveness.
[Translation]
Senator Dagenais: Ms. Bernier, thank you for your presentation. We know that CSIS and CSEC are sometimes the target of complaints about their management practices.
Could you please describe some of the difficulties your office has faced when you have to respond to this kind of complaint involving the Privacy Act?
Ms. Bernier: Are you talking about complaints made by a citizen to our office that we investigate? Obviously, these agencies have the right to and need to be secret. That is the first operational difficulty. When you deal with those bodies, be it for verifications, investigations or reviews of assessments of privacy-related factors, the first question is: do we have someone with high enough security clearance; the second issue is getting the information and sharing it, which is not obvious, because the information is highly protected. That said, our experience so far has been positive in the sense that these agencies give us access to a single individual, and we have been satisfied each time that we have the information we needed to make our decision.
Senator Dagenais: Thank you very much, madam.
[English]
The Chair: I'd like to follow up with a question, if I could. As a Canadian, I'm feeling fairly comfortable that our security system is working pretty well, even, for that matter, in the United States and the free world, if we reviewed the past 10 years and see how many actual incidents have taken place. I think we can count ourselves very fortunate. We obviously have some very intelligent people working on our behalf to be able to thwart those threats that are out there every day.
So it does give me a little bit of concern when I express this concern about how, in respect to the report that you are going to be bringing forward here pretty soon, you got to the conclusions that you obviously have already made. But you haven't had, really, the way I understand it, great discussions with those people within SIRC or CSEC to evaluate how that system works in order to be able to come up with a report that says maybe there are changes with the system from within.
Perhaps you could just go a little bit further on that, because that's an area that's obviously going to be questioned later on in the months to come.
Ms. Bernier: First of all, we have not reached any conclusions. For example, I was listening to the whole debate about a parliamentary committee or not with tremendous interest, because that's one of the issues we're struggling with, and we are still completely open. As I said, a first draft of our analysis, an analysis that has been illuminated by both a theoretical expert and an operational expert, will go to others, of course, SIRC and the for CSE Commissioner.
I would say nothing is cast in stone. We are putting to them some avenues. Like you, we look at what is done abroad. Senator Segal was mentioning what's done in various other countries. We, too, have looked at those oversight structures, to see whether they would work in Canada.
But at this point, we are still totally open-minded as to what would be best, addressing very much all of the issues that, for example, the Honourable Chuck Strahl mentioned earlier on, the issue of possible politicization of a parliamentary committee and how to take care of that. Is that truly the proper way? On the other hand, as Senator Dallaire was mentioning, you don't have access to classified information, and Senator Segal was mentioning that as well. How do we deal with that? So we have not reached any conclusion at all. We really want to offer you in-depth analysis, enlightened by expertise from various points of view.
[Translation]
Senator Dallaire: Are you in communication with the Human Rights Commission? Does your office need to dialogue with that entity about the Charter and its implications? I want to know whether there is not a silo structure, for fear of compromising privacy and for fear of threats.
Ms. Bernier: As my two colleagues just said, we do have a silo structure, and we are not the only ones. In the auditor general's reports in 2009-10, Sheila Fraser also condemned the problems with information sharing that, she felt, did not meet the requirements for public safety or privacy protection. As the two other presenters said, I think there is an undeniable challenge in that respect, meaning the information must be shared for the effectiveness of national security and public safety activities, but the information must also be shared in a way that does not compromise privacy or endanger people because their personal information has been distributed in a problematic way, in a way that may put them in danger. That is the current challenge.
To answer your question, yes, we also note that there is a silo structure. Now the question is how to create a network between those silos so that they are well connected and do not compromise information security or the protection of personal information.
Senator Dallaire: If that is the case, are you able to provide or be involved in helping with or analyzing the methodology that might be developed to make this communication more secure?
Because it is a matter of reporting what they are not doing, but it is also much more useful to be able to provide guidance in that respect. Do you have the last say on whether something can be seen as violating privacy rights and are they obligated to follow your instructions?
Ms. Bernier: The intelligence agencies come under our jurisdiction and are among the 250 federal institutions under our responsibility. That said, the fact that the legislator has chosen to create an oversight organization for CSIS and another for the CSE demonstrates that the legislator clearly intends to give those two organizations responsibility for oversight, compliance with the legislation and, among other things, compliance with privacy protection. In law, specifics trump generics, so as an office we clearly feel that these organizations have the primary responsibility of ensuring that those two agencies comply with the legislation.
That said, we still have authority over privacy protection in general for the public service, meaning that any investigation under the Privacy Act comes to us. As I said, the evaluations of privacy-related factors come to us, and we could do verifications of those agencie as well, but we do not have the same tools as the two oversight organizations.
For example, we do not have the security clearance. That is basically one of the operational problems.
Senator Dallaire: You do not have it either?
Ms. Bernier: We could have it but, for example, we do not have the CSE commissioner's staff, which is truly connected to the CSE. Their expertise is very targeted. We are not as targeted. We do not have exactly the same means.
Having said that, an issue like governance structure to ensure accountability for the various activities of the secret intelligence agencies falls within our mandate, which is why we have made some proposals that we hope you will find useful.
[English]
Senator White: Thank you for being here. It's good to see you.
My concern actually isn't about the sharing of information of our agencies to agencies outside the country as much as the agencies outside the country and what they do with them. The Patriot Act — there are a number of examples in the United States. They're sharing information afterwards that probably wouldn't have met our test.
Are you comfortable that our agencies understand the importance of the information the minute it has left their hands? I'm not going to say comfortable 2005, 2006, 2007, but today are you comfortable that they understand the impact of such releases post-Patriot Act and maybe post-Arar and other incidents?
Ms. Bernier: Intellectually they do, but when you look at the specific cases, clearly that understanding seems to break down too often. A SIRC report mentions Abdelrazik and specifically said that the country misunderstood the information.
The Patriot Act is constantly brought out. Sure enough, if you think of Maher Arar, in that case it was the United States that used the personal information of Mr. Arar in a manner that we certainly had not intended them to. So I believe that on one level, yes, intellectually, they totally understand; they see the danger. But it breaks down too often, which means that we need something more than just their understanding, and that's why we have asked for many years now that the Privacy Act be amended to include a greater, tighter framework around the sharing of information with other countries.
Senator White: A follow-up, if I may, Mr. Chair.
That is an excellent response, by the way, because that is my concern as well. Even when we consider the Patriot Act, they've used it for things such as drug investigations. Certainly I don't think the intention of the Patriot Act was to conduct drug investigations in the United States. It may have been to look at the money and where it went, but certainly to conduct drug investigations and some of the powers you have with the Patriot Act. Because you're suggesting that we receive something that we're probably not going to see for a while, do you see a middle ground that might be placed by this government on those agencies to more quickly actually force the agenda that we have, which is to ensure the privacy of Canadian citizens, in particular on information that is shared with other countries? Do you see something else we could do besides that more quickly?
Ms. Bernier: Yes. I had my hopes on the declaration on privacy principles within the context of Beyond the Border, the action plan. You may recall that one of the first steps — and I commend the government for doing that — in negotiating the Beyond the Border action plan was to adopt a declaration of privacy principles. One of them states that when one of the two countries — Canada or the U.S. — transfers information about one of their nationals to a third country, it will inform the other one. I was dearly hoping that there would not be a mere consultation but that, rather, it would be with the authorization — in other words, that the U.S. could not transfer information about Canadians to a third party without Canada's authorization. Sadly, our negotiators, who I'm sure worked very hard to obtain that, were not successful. That would be a concrete measure that I would have liked to see.
I believe if we did have just that improvement that we've asked for, for so many years, that it be in writing, that there be transparent protocols of sharing of information, going back to Justice O'Connor's recommendations, in fact, in the Maher Arar inquiry, precisely around the sharing of information with third countries, that would go a long way to protecting Canadians' personal information and their rights generally.
Senator Mitchell: It's clear that you have a huge job. How big is your budget? How many people do you have doing this job? I think you do more than just CSEC and CSIS. What portion of your resources goes to those two things and what portion goes to protecting privacy elsewhere?
Ms. Bernier: First of all, we have 177 employees and a budget of roughly $22 million. I couldn't tell you exactly what money goes to what institution. It is spread among 250 federal institutions, as well as the private sector. We also investigate Facebook and Google. If you go through our annual report, you will see that all the Internet giants are there, and some lesser-known, private sector business.
But it depends on what occurs. If we have a lot of complaints — you can imagine, for example, that a lot of money went into ESDC after the incident where they lost a hard drive, with almost 600,000 people's personal information, so a lot of money went there. So it depends on what we receive.
The Chair: I'd like to pursue a question, if I could. I don't quite understand what your authority is over these organizations. Earlier this evening we were told that there was actually a protocol agreement with one of the Five Eyes countries. I don't think we specifically named which country, but that there was going to be a direction to see if that particular protocol could be signed with the additional four, the way I understood it. I believe I'm correct.
In your capacity as Privacy Commissioner, do you have access to that protocol?
Ms. Bernier: It would be within an investigation or an audit. It would be someone who has the proper security clearance. So the circumstances that could give us access to this protocol, for example, are if I exercise my discretion, say, to audit or to do a commissioner-initiated investigation. But I need some reasonable grounds to do that. Audits are discretionary. It's on a risk-based analysis. So we'll say the department says that X, Y and Z, because of the amount of personal information they have, because sometimes of the risks that there are, should be the object of an audit.
To give you an example, our last annual report was an audit of the Canada Revenue Agency, because we felt that the risk meant we should go there. We could use our discretion to go and audit that, but it would be operationally quite challenging, because of the expertise, because of the security clearances, but also because, as I said earlier, we understand that the will of the legislator was to give specific oversight for these two organizations, being CSEC and CSIS, to two specific bodies.
The Chair: I just want to get this clear for the record. You do have the authority, if you decide to do an audit of these organizations? I'm assuming your answer is yes.
Ms. Bernier: Yes.
The Chair: Then is that audit private, or do you make that information public?
Ms. Bernier: We make the information public. Of course, anything that is confidential we could not disclose. So even through our investigations, a lot of the information we receive, whether it's the private sector — because sometimes it's commercially protected information — or the public sector — because it has a security protection — we cannot disclose, and that information will remain secret. But we will make our audits public, absolutely. We will make investigations public. But always we need to remove, whether our information is protected by another system than ours; the protection comes with the classification system of the Government of Canada.
Senator Dallaire: This might catch you a bit by surprise, but when you are looking at the privacy dimension at large, would you agree that possibly net providers like Google have now gone rogue with the private information?
Ms. Bernier: Well, I found it extremely interesting this morning to see the statement they have produced. In fact, I brought it with me. I don't know if you've seen that. They've made this very strong declaration in the U.S. saying that the government has got to stop collecting all this information and must be very protective of the information and so on and so forth. So there they are giving a lesson to the government in the U.S., which of course we take with a grain of salt. That being said, their intentions are impeccable.
But we know, as I hear behind your question, that they themselves collect tremendous amounts of information and that they would like to use it for all sorts of purposes, for example, advertising. You go on a website; you go to another website; and, by coincidence, publicity that relates to the first website appears on the second. Obviously someone is tracking you.
Have they gone rogue? I think that they are enjoying a time when the law has not quite yet caught up to technological developments, and I think it's about time that we modernize the law to actually put a framework around what is acceptable or unacceptable in relation to personal information.
Senator Dallaire: My query is the fact that there will be soon a post-Google; there will be another capability that will come out that will blow Google away. And if there is no grasping of the situation with Google, this next-generation capability will be massively intrusive and uncontrollable.
Ms. Bernier: You have heard the Honourable Chuck Strahl talk about how old the legislation he deals with is. Ours is just as old. It's from 1983. People didn't have computers in their offices and Facebook wasn't created and we were not exchanging emails. Everything he said applies to our analysis as well. We have legislation that simply does not correspond to the current privacy risks. That needs to be addressed.
Senator Dallaire: Thank you very much.
The Chair: Colleagues, I think we're coming to the end of the evening.
I want to say to our witnesses we very much appreciate your testimony. We appreciate the lateness of the hour to stay here and provide that evidence for us.
Colleagues, I hereby adjourn the meeting. Thank you.
(The committee adjourned.)