Proceedings of the Special Senate Committee on the
Anti-terrorism Act
Issue 13 - Evidence - Morning meeting
OTTAWA, Monday, June 13, 2005
The Special Senate Committee on the Anti-terrorism Act met this day at 10:30 a.m. to undertake a comprehensive review of the provisions and operations of the Anti-terrorism Act, (S.C.2001, c.41).
Senator Joyce Fairbairn (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call the meeting to order. This is the twenty-eighth meeting with witnesses of the Special Senate Committee on the Anti terrorism Act. For our viewers, I will explain the purpose of this committee.
In October 2001, in direct response to the terrorist attacks in New York City, Washington, D.C. and Pennsylvania, and at the request of the United Nations, the Canadian government introduced Bill C-36, the Anti-terrorism Act. Given the urgency of the situation then, Parliament was asked to expedite the study of the legislation. We agreed. The deadline for the passage of that bill was mid-December 2001.
However, concerns were expressed then that it was difficult to thoroughly assess the potential impact of that legislation in such a short period of time. For that reason, it was agreed that three years later Parliament would be asked to examine the provisions of the act and its impact on Canadians, with the benefit of hindsight and a less emotionally charged public situation.
The work of this special committee represents the Senate's efforts to fulfil that obligation. When we have completed the study, we will make a report to the Senate outlining any issue that we believe should be addressed. The results of our work will be available to the government and to the people of Canada. The House of Commons is undertaking a similar process at this time.
To date, the committee has met with government ministers and officials, international and domestic experts on the threat environment, legal experts and those involved in enforcement and intelligence gathering.
This morning, we return to the question of oversight, and we are very pleased to have with us the former Chief Justice of Canada, the Right Honourable Antonio Lamer, who now serves as Commissioner of the Communications Security Establishment, that mysterious CSE that people always wonder about. Mr. Lamer will tell us all about it. He is joined by his Executive Director, Ms. Joanne Weeks.
I ask that questions and answers be as concise as possible so that we can have a full discussion.
We are pleased to have you with us, Mr. Lamer. Please proceed.
The Right Honourable Antonio Lamer, P.C., Commissioner, Office of the Communications Security Establishment Commissioner: Honourable senators, it is a pleasure for me to be here today to participate in the work of this special committee reviewing the Anti-terrorism Act. As you mentioned, Madam Chair, I am accompanied today by Ms. Joanne Weeks, my Executive Director, and my in-house legal counsel, Ms. Colette Davignon.
The omnibus Anti-terrorism Act that you are examining introduced an amendment to the National Defence Act. That amendment established in law the mandate and activities of the Communications Security Establishment as well as that of the office of the Communications Security Establishment Commissioner, the position I occupy.
Prior to this, the CSE commissioner was created in 1996 by Order in Council pursuant to Part II of the Inquiries Act. The legislation continued the commissioner's powers under the Inquiries Act and gave him further duties under the Security of Information Act.
[Translation]
Let me state at the outset that this review is a fundamental component of ensuring that the intrusive powers granted to certain organizations, that must of necessity operate in secret, are used as Parliament intended.
[English]
I believe that review agencies such as mine strive to make an important contribution to the security and intelligence community. I have observed that a popular approach to security and privacy these days is to present them as almost mutually exclusive principles, as if it were a matter, in the first instance, of assigning precedence to one over the other. In my opinion, this is a simplistic approach. The issue involves, on the one hand, the democratic rights and freedoms of the individual, privacy being one of them, and, on the other hand, society's collective right to security. Both are essential values of an open and democratic society such as our own, and they must coexist. The trick is to find the appropriate balance in particular circumstances.
The issue of competing interests arises when society is under threat. At such a time, a decision must be made about the extent to which individual democratic rights must yield in favour of the collective security of the country as a whole. That decision establishes the appropriate balance between individual and collective rights, and it is made by legislators and through public discourse.
In 2001, Parliament made that decision with the passage of Bill C-36, the omnibus Anti-terrorism Act. Given the circumstances, and under the clear threat to collective security that existed at the time, Parliament acted quickly, but not rashly. It based its decisions on the best information available at the time and on all the advice from the public and policy makers that timing permitted.
In its wisdom, Parliament also determined that the balance established by the act ought to be reviewed more fulsomely three years after its passage. It is in this context that I appear before you today.
[Translation]
The law you are examining has been in force for almost four years. While it is not my place to comment on the other parts of the Anti-Terrorism Act, and I do not intend to do so, I can comment on the National Defence Act amendment resulting from that omnibus bill four years ago. I can state, without any reservations, that the amendment was essential in every way.
[English]
This amendment gave CSE new powers to intercept private communications, but with a special authorization from the Minister of National Defence. It is important to note, however, that the legislators of the day set clear conditions on that power.
One of my duties is to review the private communications intercepted by CSE under ministerial authorizations and to report to the minister on the lawfulness of those interceptions. I shall return to this topic in greater detail later.
I should now like to turn to my general mandate. I review CSE's activities “to ensure that they are in compliance with the law” and to ensure that CSE protects the privacy of Canadians. When discharging this aspect of my mandate, I make every effort to ensure that I do so in a manner that does not impede CSE's operations. I also investigate complaints and I inform the minister and the Attorney General of Canada of any activity of CSE that I believe to be unlawful. I am happy to say that to date complaints have been resolved informally, and neither I nor my predecessor, the former Chief Justice of Quebec, the Hon. Claude Bisson, has had to make any report of unlawful activity to the Attorney General.
How do I go about reviewing CSE's activities?
Under my authority and direction, my staff employs many of the standard practices used in reviewing an organization. I approve a three-year work plan that is revised as appropriate. I always give priority to those areas or programs of CSE that may implicate the privacy of Canadians.
Through my Inquiries Act powers, my staff has access to all premises, documents, files and personnel at CSE. They conduct thorough file and document reviews, interview personnel and perform what I might describe as spot checks, which may include sitting with CSE analysts as they perform electronic searches and asking them questions. This approach may also include accessing databases to ensure that information has been collected lawfully and that the privacy of Canadians is protected as required by law.
On completion of a review, I provide a classified report to the Minister of National Defence and include any recommendations that I determine to be appropriate.
[Translation]
Let me focus now on my review of CSE's activities conducted under ministerial authorizations that I referred to a few minutes ago. Legislation requires me to review the activities under each authorization and report to the minister on an annual basis.
On May 19, 2005, the minister tabled my annual report to Parliament. In that report, I observed that for a jurist, who is accustomed to dealing with warrants issued by a judge, a ministerial authorization is a strange sort of creature. However, one must keep in mind that when CSE collects information under a ministerial authorization, it does so, according to legislation, as a complementary subset of its main foreign intelligence collection mandate. And I emphasize the word foreign. That is important.
[English]
Ministerial authorization is necessary in those instances where the foreign intelligence collection activity poses a risk of intercepting private communications, always targeting — I emphasize always targeting — a foreign entity outside Canada where a warrant issued by a Canadian court has no jurisdiction. Under the Criminal Code, any communication that touches Canada is defined as a private communication, including those where foreign end is the target of the interception. A ministerial authorization is a unique solution to a unique set of circumstances. This could occur when the communications of a foreign entity being targeted by CSE lead into or flow out of Canada. With a ministerial authorization in place, CSE may retain and use such communications but only if they meet the criteria established in the act.
The ministerial authorization provision of the legislation also provides for an exclusion to Part VI of the Criminal Code — that is, invasion of privacy. Honourable senators are familiar with that, I am sure. This means that Part VI of the Criminal Code does not apply in relation to CSE's interception of a communication under a ministerial authorization or to the communication itself. Therefore, CSE's interception and retention of that private communication is not a criminal offence. My duty in this regard is to examine those private communications intercepted and retained by CSE to ensure they were authorized by the minister and are therefore lawful and that they were essential to the international affairs, defence and security of Canada.
[Translation]
In my exchanges with the minister, I have expressed to him my view of my duties, particularly those respecting my review of the activities conducted by CSE under ministerial authorizations. It is an area that I continue to assess and interpret with great care, as I am mindful of the importance of the work CSE performs on behalf of the Government of Canada. I am equally mindful of the importance of providing assurance that CSE discharges its responsibilities in a manner that ensures that the basic rights of our democratic society are protected, including the rule of law.
[English]
Thank you for the opportunity of appearing before you today. I wish you well in your deliberations. I would be pleased to answer your questions.
The Chairman: Thank you very much.
Senator Kinsella: Good to see you, commissioner. In terms of Part 5 of the law we have under review, would the commissioner let us know if there are provisions of this section dealing with the Communications Security Establishment, based on his experience with it so far, that would lead him to find some areas of amendment?
Mr. Lamer: Nothing earth-shaking. Certainly, the rapidity with which the draftspersons and Parliament itself had to deal with this matter has been conducive to a few things in the act that could be reviewed and polished or perfected, for the purposes of greater clarity.
Senator Kinsella: Mr. Commissioner, the act does provide that the commissioner is to be appointed for a term of not more than five years. How long have you been in this position?
Mr. Lamer: Two years. I have a year to go.
Senator Kinsella: Is there a valid concern that a corporate memory is something valuable in this role and that there ought not to have been that limitation of five years in the act?
Mr. Lamer: That is for Parliament to decide, in its wisdom.
Senator Kinsella: What about based on your practical experience, which is the testimony we would like to get?
Mr. Lamer: I can say this much: At the outset, I had quite a few briefings with my staff as well as with the staff of CSE. Those briefings were necessary to understand the whole process, especially CSE's operational activities, which I cannot get into. Coming from the law, of course, and moving into the field of telecommunications, I have to communicate with my staff whilst they communicate with CSE. There is a certain period, but that can be achieved quite rapidly because these people are experts.
In the year and eight months following that, I was capable of putting in many reports to the minister — reports that are top secret; I cannot mention them.
Senator Kinsella: Building on section 273.63(2)(b) that speaks about complaints, and in your opening remarks you mentioned complaints and that all of them have been resolved informally, could you describe for us the nature of those complaints, without breaching any confidentiality?
Mr. Lamer: I will turn this over to my executive director. They are sifted through her.
Ms. Joanne Weeks, Executive Director, Office of the Communications Security Establishment Commissioner: Honourable senators, we have had a number of complaints. They range from concerns about the conduct of CSE's activities to some of the more extreme cases of people who believe that their thought processes are being tampered with.
We were fortunate that none of the complaints required a formal hearing of any kind, which is not surprising when you consider that the mandate of CSE is foreign intelligence. The target of CSE's intercept activities is the foreign end of communications. It is not likely that a complaint would be triggered from abroad.
Senator Kinsella: Of the complaints received, how many come from Canadian citizens, and how many come from landed immigrants? The act defines “Canadian” to include both Canadian citizens and landed immigrants.
Ms. Weeks: To my certain recollection, senator, we have not received a complaint from a landed immigrant. In fact, we have not received many complaints generally.
Senator Kinsella: Can you tell us how many complaints you have received?
Ms. Weeks: Since the creation of the office, we have received approximately a dozen.
Senator Kinsella: Were they all from Canadian citizens?
Ms. Weeks: Yes, they were.
Senator Kinsella: The act we are reviewing provides for the parliamentary review we are currently engaged in, and our colleagues in the other place are engaged in a similar review. Once that section of the act has is been fulfilled, there is no more review. Based on your experience, and to the extent that your office is providing an overview in the operational level in terms of the entire Anti-terrorism Act, should the act be amended to provide for another three-year or five-year review?
Mr. Lamer: Are you asking for my opinion?
Senator Kinsella: Yes.
Mr. Lamer: That is for Parliament to decide. Reviews are a healthy process in this kind of legislation. The situation is evolving. I cannot get into certain details, but there is evolution, and the legislation should be in conformity with that type of evolution.
Senator Kinsella: Based on your experience, is the definition of “private communication,” as provided for in section 183 of the Criminal Code, in the work you are doing, adequate, or should Parliament be looking at how we define “private communication?”
Mr. Lamer: I do not think there is a problem with the definition of private communication. If we are protecting the privacy of Canadians and weighing it against the necessity for intelligence gathering to protect Canadian society, it is the same private communication as you will find in the act. The definition is somewhat similar to that of the Criminal Code. It is an exact replica of the Criminal Code. That is what we want to protect, do we not?
Senator Kinsella: Based on your experience with the dozen complaints you have received, are the methodologies of communication a factor, for example, the new technologies of cell phone calls, emails, people talking on the street corner or a coffee shop and so forth?
Ms. Weeks: Honourable senators, I wish to correct an impression if I left you with the notion that the complaints relating to technology were legitimate complaints. Many of them were complaints from people who suggested that they had been captured and that implants had been put in their teeth. Some of the complaints had to do with the actions of CSE as an employer, for which there are other avenues of redress at law, which the commissioner would not examine.
There were no complaints linked to emerging technologies, although that is always the challenge in reviewing an organization as technologically sophisticated as CSE is. The law and technology do not necessarily move apace.
Senator Kinsella: The example of people having an implant put in their teeth will certainly capture the imagination of anyone following the proceedings of this committee. Not only is that an issue of privacy but also of security of person. Did that complaint have any merit?
Ms. Weeks: No, senator, it did not.
Senator Day: I am still thinking about the implant in my teeth while I prepare to ask my questions.
I should like to follow along further with respect to the authority that came with the anti-terrorism legislation to investigate complaints. Ms. Weeks, perhaps you could comment further on this. It does not sound like it is a big part of your work. You said there have been 12 complaints, all of which have been dealt with summarily and informally. Was that a good additional power to be given to the commissioner's office? Was it necessary, or was it a distraction from the main role you have to play?
Mr. Lamer: If there is a bona fide complaint, it is most important that a commissioner under Part II of the Inquiries Act have all of the powers necessary to deal with that real invasion of privacy, and to deal with it ruthlessly, and to report to the Minister of National Defence and to the Attorney General. The law says that in those cases I must report to both ministers for action.
There was a year in which there were no murders in Newfoundland and Labrador; however, that is not a reason to abolish the murder section. It is very important that the power be there, if needed — and I hope it will never be needed — and that it be under the Inquiries Act power.
Senator Day: Am I correct that this power was not with the commissioner prior to the legislation?
Mr. Lamer: Yes. He was a commissioner under Part II, and as a commissioner under Part II, you can hold inquiries.
Senator Day: Did the authority to look into complaints come with the legislation that we are now reviewing, or was it there before?
Mr. Lamer: No, it was there before. As I mentioned, my predecessor for a while was created under the Inquiries Act. When I took the job, he had been reborn, if you will, under the new legislation, but with the powers of the Inquiries Act.
Senator Day: One of the requirements is that the commissioner be a supernumerary judge or a retired judge of a superior court. Is that a desirable restriction on who can fill that position?
Mr. Lamer: Parliament, in its wisdom, wanted a superior court judge. I see nothing wrong with being a non-superior court judge. I have nothing against them. I even wrote nice things about them, as you well know. However, that was Parliament's choice.
Senator Day: I understand that.
Mr. Lamer: I might say that, as regards supernumerary judges, I have a little uneasiness with it. A supernumerary judge is a full-fledged judge. He is a full-time judge, but he only works half the time. It seems to me that getting a judge involved in this type of activity is perhaps not the best approach to take to having somebody chairing such a commission. It could be a member of the bar. I am a member of the bar. It could well be an ex-judge without being a member of the bar. I happened to go back to the bar.
I was not asked my opinion by the Parliament, but, if I were asked, I would say that it may be preferable that it be a retired judge. A supernumerary judge sits 50 per cent of the time. The Judges Act states that a judge should give all of his or her time to judicial duties. That is incompatible with giving part of your time to these duties.
You would have a supernumerary judge at full salary doing a job that I am doing at the price of a law clerk. I do not mind that; I am not zealous about that. What concerns me more is having a judge who will be sitting for six months or on a leave of absence for the whole year. I think there is a problem there. However, that is up to Parliament, not me.
Senator Day: Could a commissioner also be a member of the bar who might not have been a judge but who is very knowledgeable on security and intelligence matters?
Mr. Lamer: No, it must be someone with legal training. The purpose of the commissioner is to check the lawfulness of the activity, not the efficiency of the activity. The Auditor General checks the efficiency of the activity and determines whether taxpayers are getting their money's worth, given the budget. It specifically says that I am limited to the lawfulness of the activity. That suggests that you cannot have an engineer there, unless he has another degree in law.
Senator Day: There are some of those around.
Mr. Lamer: I know, but they combined the two. You want to have somebody who has some experience with law. A prominent barrister or solicitor could well be the chair. If Parliament asked my opinion, I would give it. My job is watching over CSE; I am not the government's lawyer.
Senator Day: We are mandated to review the legislation and to make recommendations.
Mr. Lamer: You are asking me, and I am answering.
Senator Day: That is fine, and I would encourage you to continue to give your opinion on different issues.
The final area I wish to discuss with you is with respect to the cooperation and the sharing of information and intelligence between various security and intelligence agencies in Canada. The Standing Senate Committee on National Security and Defence has, on more than one occasion, recommended that there must be more sharing of information and cooperation and that we should not be dealing in silos on these issues. The review mechanisms for each of these silos are continuing. The commissioner's review, your position, is to review the activities of intelligence gathering at the CSE, but not other areas.
Others before us have recommended that wherever there is a cooperative activity between various intelligence agencies or security agencies, there should be another oversight body created. The Minister for Public Safety and Emergency Preparedness has suggested that there should be a parliamentary oversight body.
Mr. Lamer: I read that working paper.
Senator Day: A committee met last summer and came forward with a recommendation, and she has accepted that.
Mr. Lamer: That was the Lee committee. I testified in front of the Lee committee.
Senator Day: Since you have read it, and I am glad you have, I am wondering what your view is as to that gap in oversight of the cooperative activity and the sharing of activity between various Canadian intelligence agencies. In your view, could a parliamentary committee perform that task well, or do we need a non-parliamentary-type committee separate or in addition to the parliamentary committee?
Mr. Lamer: I have two questions here. The first question is to what extent the reviewing agencies share information. I have been given to understand that my staff is in contact with other review mechanisms of intelligence-gathering organizations on an ongoing basis.
Senator Day: Would that be like a SIRC, as the overview committee for CSIS?
Mr. Lamer: Examples would be SIRC and the RCMP overview committee. There are others. We had an informal meeting three weeks ago of everybody in the intelligence community, except for one who went to the wrong place.
Senator Day: That was bad intelligence, I guess.
Mr. Lamer: Your second question was about the parliamentary committee proposed by Deputy Prime Minister McLellan.
This is a personal opinion, and I am not sure it is shared by all. I have the greatest respect for Parliament. It is the highest court in the land. The Supreme Court is not the highest court in the land. The highest court is Parliament. It has always been for me.
I always welcome supervision by the people I elect, supervision of bodies such as the one I am presiding over as commissioner, and other bodies such as SIRC. I welcome that. However, one must acknowledge that there are inherent problems with that process. Those problems will have to be addressed by Parliament very closely.
Some people did not like what the Deputy Prime Minister put forward as a proposition. Others did like it. I have been told by one person who has some expertise in the field that, with respect to extremely sensitive information or even just top secret information, the information can be shared by only a certain number of people before there will be a leak — which could be extremely damaging to Canada's security or interests.
Intelligence gathering involves not only anti-terrorism. We are here to discuss the Anti-terrorism Act, but intelligence gathering also exists for economic and political reasons. A country is a business and it has business competitors. Hence, there is a great deal of information that has nothing to do with terrorism. I would alert Parliament, in exercising its wisdom in setting up a parliamentary committee, that it be alerted to those aspects that are peculiar to an intelligence-gathering organization, which every organized and civilized country has.
This is a very personal opinion — which, I reiterate, is not shared by everybody — that is, that I am not averse to the concept. You have a difficult job in finding the proper balance between the need to protect the information and the need to oversee the agencies.
There have been other suggestions, but I will not get into those. I will stop just by answering your question. I will leave it to Parliament to decide whether the oversight body should be a parliamentary or a non-parliamentary one. You can multiply the tiers.
My bottom line is that, done in the proper way, a parliamentary committee is not something that I would abhor. I have said publicly that I would welcome it if appropriately structured.
Senator Day: I have one point of clarification with respect to the informal meetings of the various existing oversight groups. Would it be helpful if they were more structured and had a statutory basis?
Mr. Lamer: The people who meet are the people on my staff. With your permission, Madam Chair, and your permission, Senator Day, I would turn your question over to Ms. Weeks.
Senator Day: Ms. Weeks, you were not the person who missed the meeting, were you?
Ms. Weeks: No.
I should like to stress the point that the review agencies in this country stick to their knitting. We in no way involve ourselves in the review activities of a sister agency. That would not be appropriate.
The review agencies, as they are currently structured, are aligned in respect of organizations they review. My personal belief is that that is as it should be. The range and complexity of security and intelligence activities in this country beg a degree of specialization. It is very important to make sure that each review agency is focused on the unique mandate of the organization it reviews.
I think there should not be a fostering in legislation or otherwise of communications between review agencies. We have to know each other, to have some awareness, and it always helps to know the other people when you meet them at international meetings outside the country because you feel silly if you do not.
There is also an effective international review agency conference that is held every 18 to 24 months. There is some informal contact between countries' review agencies flowing from those meetings. This is not a tight-knit group that is in constant communication.
Senator Jaffer: Mr. Lamer, I read the report you filed in April 2005 where you write on page 3 about oversight mechanisms. You state that the most effective and logical approach is to establish one review mechanism to examine activities of the RCMP.
We have had before us a number of witnesses, including Ms. Heafey of the Commission for Public Complaints Against the R.C.M.P, who have said that there should be a national oversight mechanism. As I understand your comments, you suggest that there needs to be one body separate for the RCMP.
I should like to hear your comments as to whether you are still of the opinion that there should be one separate oversight body for the RCMP and not a national oversight body.
Mr. Lamer: The Arar commission's goal is to strike an appropriate balance that is in the best interest of Canada. We will be addressing that issue.
Ms. Weeks has just referred to the different types of intelligence gathering and purposes for that activity. The profile of the people involved is equally different because it corresponds to the nature of the work that is being done.
You can slice the bread in many ways. You could have one agency comprised of a big body of people who would be looking at different types and purposes of intelligence gathering. I cannot get into too much detail about that. That would be a smorgasbord approach. That agency would have to be divided into divisions. One division of that oversight body would be looking at this and the other one would be looking at that. Not everybody has the expertise that my people have. They enjoy an expertise that you will not find, understandably so, in other agencies, and vice versa. That is my short answer.
Senator Jaffer: Senator Kinsella raised the issue of complaints. From what I understood from Ms. Weeks, you have received 12 complaints. As commissioner, you are responsible for receiving complaints against the CSE.
It is my understanding, and I do not know your business as well as you do, that if your organization were doing a good enough job Canadians would not know that their conversations or emails are being intercepted. Is it possible that one of the reasons you do not have many complaints is that people do not know that their conversations are being intercepted and therefore have no reason to complain?
Ms. Weeks: We have not spent a lot of time discussing complaints amongst ourselves because we have not had that many. The mandate of CSE is the collection of foreign intelligence. CSE is not targeting Canadians on the QT. That is not the case at all.
In intercepting foreign communications, there are no grounds for complaints, as we understand the complaints process within Canada. It is not a targeted interception. It has nothing to do with any attempt on CSE's part to intercept Canadian communications at all.
Senator Jaffer: Thank you for that clarification. What do you mean when you say that it is not a “targeted interception?”
Ms. Weeks: A targeted interception is when CSE directs its interception at a foreign end, a foreign communication, which is a communication outside Canada and, therefore, outside the jurisdiction of the Canadian courts.
Senator Jaffer: The targeting of certain communities has been mentioned. You are telling us that CSE is not looking at certain communities?
Mr. Lamer: Absolutely not. In my opening remarks, I emphasized that we are not concerned with foreigners who are in Canada. We were talking about Canadian citizens and landed immigrants. However, it goes further than that; it is anybody in Canada. CSE does not touch anybody in Canada.
The target is a foreign target. It is outside of Canada. However, in my opening remarks, I referred to incoming or outgoing communications of some form or fashion with or by that foreign target. That limits to a very great extent CSE being prone to complaints. After all, if the foreign entity finds out about the activity will not make a complaint to me in Canada. They might make a complaint to External Affairs or the Government of Canada, I do not know. Certainly, they will not go to the commissioner of CSE and complain to me.
Hence, not being prone to complaints, there are very few complaints. There have been no what I would call real complaints. People have complained, but it has turned out that it did not go any further to becoming a “complaint.” It was a complaint in the vernacular, but not a complaint in the legal sense of the word.
Senator Jaffer: If CSE were intercepting communications of someone who was in our country, whether a refugee, a landed immigrant, or a Canadian, does CSE notify them at a later date that there was an interception?
Mr. Lamer: That would be unlawful. Anyone can act unlawfully and without revealing it, including all of the people here. CSE does not act unlawfully; if it did and I found out, the person would have to deal with me.
Ms. Weeks: You are thinking, I believe, of an interception such as the interception of one communication where you go in surgically and pick up one conversation. It does not happen that way with CSE.
These are foreign communications that are brought down in bulk and searched using key words. If, in a certain circumstance, a Canadian or a private communication were encountered, that would be handled consistently in a manner that is prescribed by the Privacy Act. It is not a question of acquiring a telephone conversation of a specific individual. It is not surgical in that respect. That is not to say that an individual would be notified, but it would not be that surgical.
In the event that a ministerial authorization were in place, CSE, having intercepted the foreign end of the communication, would then be required to look at that communication in light of the four conditions established in the act, and they would also have to look at the essentiality of the communication in respect of national defence, foreign affairs and security. All those criteria being met, CSE can then retain the communication. This happens in very few circumstances.
Senator Jaffer: Given that the person whose communications you are intercepting is not notified, there is no way for them to lodge a complaint. Is that correct?
Ms. Weeks: The interception, senator, is not happening at the Canadian end of the communication. The interception is at the foreign end. A ministerial authorization applies in the event of a communication flowing into Canada or out of Canada to the intercepted foreign end.
Senator Fraser: Can you tell us how many ministerial authorizations there have been? Can you give us a rough idea?
Mr. Lamer: We received 23 ministerial authorizations during the period of January 2002 to March 31, 2005. Of these, eight have been reviewed, two are under review, nine are to be reviewed and four are still active.
Senator Fraser: How does the process work? The minister may, for the sole purpose of obtaining foreign intelligence, authorize the CSE to intercept private communications. Does this mean that if CSE has reason to believe that there are communications occurring between, let us say, someone in France and someone in Vancouver, it goes to the minister and requests permission to eavesdrop? How does it work? What is the authorization for, so to speak, and at what stage does it occur?
Mr. Lamer: The purpose of this type of ministerial authorization is to allow CSE to collect foreign intelligence when there is a risk of intercepting private communications.
Senator Fraser: CSE determines that in this general area it is their job to look at — there may be a risk that there will be one end of the communications in Canada?
Mr. Lamer: I cannot get into the details, but it is in the nature of the manner in which communications are being intercepted.
Communications is an extremely complex area, and is becoming more complex on a weekly basis. It is like my new microwave — I wish my wife had not changed it; I am still trying to figure it out.
I am precluded from discussing the operations of the CSE, as was Mr. Coulter when he was asked the question here or before the House committee. I watched it on CPAC. All I can say is that it is extremely complex. The nature of the manner in which it is done, you cannot foresee that there will not be a private communication one way or the other. The target is always at the foreign end.
Senator Fraser: I do appreciate that. You can appreciate our difficulties, however. We are reviewing a piece of legislation, and we are trying to determine how it actually works in practice.
Let me come at this in a slightly different way. Are you satisfied that this section of the act that we are reviewing is adequate as it stands? Should there be more safeguards before a ministerial authorization is granted? Should there be more safeguards about information that is retained under this ministerial authorization portion of the act? Do you think the way it has been drawn up is fully sufficient, or is there any change that we could usefully recommend?
Mr. Lamer: We are in the course of looking at that. Ms. Weeks can speak to that, because she is involved in looking at some aspects. We are getting into the technical aspects, and I am the lawyer.
Senator Fraser: That is why I was asking in terms of the way the law is written. Obviously, it is the technical way it plays out that ends up feeding back.
Mr. Lamer: One visits the other.
Ms. Weeks: If I might add, honourable senators, there are three things that are evolving at the same time — that is, ministerial authorizations, technology and the law. Ministerial authorizations, as the commissioner mentioned in his opening remarks, are a new breed of cat. Our experience with the instrument is maturing and improving every day. The appearance of ministerial authorizations has vastly improved over 2002.
The law is moving at the law's pace, and technology is just flying past. What is perhaps lawful right now in the strict sense of the word might not be considered as lawful five years from now when there are new measures technologically available to filter private communications, for instance.
It is fair to say that given where ministerial authorizations are right now, where the law is right now, and where the technology is right now, there is a good equilibrium. It is something that is constantly evolving. It is something that the commissioner's office will be looking at increasingly in the months and years to come.
It is not possible to say that this is the fixed point in time where everything is stable and everything is perfect, because it will not be like that. I doubt that it will ever be like that.
Senator Fraser: We do understand that. This legislation will probably be reviewed again in due course. At the moment, it is our job to ask, three years later, if we should go back and revisit this section. You tell me, as I understand it, that you are not yet ready to make recommendations about what the law should be changed to say, if it should be changed.
Mr. Lamer: That is right. I am not now in a position, for the reasons that have just been given to you, to say that some new technology will arise next week and create a legal problem. When that occurs, I will make a report to the minister who, through the proper channels, will pass it on to Parliament.
Ms. Weeks reminds me that not only do I send legal problems to the minister; I sometimes offer legal solutions. Legal solutions do not of necessity always require legislation. Sometimes, it may be a matter of approaching things in a different manner. I cannot describe in detail how this works.
Senator Fraser: We do appreciate the difficulties under which you are labouring.
When your review of this element is done, if there are aspects of your conclusions that would be useful to us as we go forward with our review of this legislation, perhaps I could ask you to forward that us.
Mr. Lamer: Yes, of course.
The Chairman: Thank you. We will keep an eye on that as our hearings progress.
Senator Smith: I have not focused much on this subject matter; I am a reasonably green and innocent legislator from the Senate, who also happens to be a lawyer. I have no idea as to the size of your organization is the number of staff you have. I am somewhat curious about that. I believe I have heard that CSE's primary function is the collection of foreign intelligence. However, I have also heard that you deal with complaints, of which I think I heard you have had 12, presumably since 1996. That amounts to an average of one and a quarter complaints a year. I have also heard that you do something with regard to ministerial authorizations, of which there were 23 in the last three years, eight of which are still under review. You also look at legislation with regard to which there are issues as to whether matters dealing with security and privacy are legal, which is what brought you here today.
I am all in favour of due process, and of cost-effective due process. What percentage of the time of your staff would be spent on collection of information, on legal review of legislation, on ministerial authorizations and on complaints? Have I left anything out? I am trying to get a feel for what your world is all about, to the extent that your lips are not sealed.
Mr. Lamer: Ms. Weeks is in a better position to explain that, as she has been working with my staff for many years.
Ms. Weeks: We currently have eight full-time staff members plus an array of subject-matter experts whom we call upon depending upon the topic of the review the commissioner is about to launch. I can understand that this is somewhat complicated, because the legislation is somewhat complicated. The commissioner's mandate, as described in the act, is to review the activities of the establishment to ensure that they comply with the law; and in response to a complaint, to undertake investigations and to inform the minister and the Attorney General of Canada of any activity the commissioner believes may not be lawful.
Ministerial authorizations are a subset of CSE's main foreign intelligence activity. We review those activities all the time. The commissioner has a specific mandate with respect to ministerial authorizations, but that is not the exclusive foreign intelligence review activity upon which the office embarks. The office has a three-year work plan that is updated as required that sets out any number of areas that ought to be reviewed. These areas have absolutely nothing to do with activities under ministerial authorizations. These are specific programs or fields of inquiry where the commissioner believes there might be a risk of unlawful activity or where the privacy of Canadians may not be safeguarded. That is totally separate from complaints and totally separate from activities under ministerial authorization. That is the bread and butter business.
Senator Smith: How much of the collective time does each of these functions take? Twelve complaints since 1996 would take up a pretty small amount of time.
Ms. Weeks: A very small amount, sir.
Senator Smith: Over 30 years ago, I was on Toronto City Council, and someone has been suing me ever since. These complaints have gone to every level of court. I have never even responded to any of the charges as he is obviously not entirely sane. Do you get many such complaints?
Ms. Weeks: The majority of the complaints fall into that category.
Senator Smith: Some of them may have been from the fellow I just referred to.
Ms. Weeks: At the same time, we have to give them the courtesy of due process. The majority of our time is spent carrying out the mandate of the commissioner, as found in section 273.63(1)(a):
To review the activities of the Establishment to ensure that they are in compliance with the law;
Mr. Lamer: As well as dealing with complaints.
Senator Smith: Have I left anything out?
Mr. Lamer: Yes, you left out my appearance here and my appearance before the House of Commons committee on Wednesday.
Senator Smith: We appreciate that.
Is it fair to say that you do not see any significant problems with the legislation before us? The policy is one thing, but whether it is legally compliant is another matter.
Mr. Lamer: As I said at the outset, the policy is up to Parliament, and I will apply whatever law you pass. I am no longer in a position to be concerned with its constitutionality or whether it is ultra vires or intra vires, constitutional or unconstitutional. I shall apply any law you pass. That is my job.
However, because of the evolution of the processes being used by CSE to fulfil its mandate, we are in the process of studying certain other aspects of the law. I do not want to take you into that. It would be technical. There are certain aspects of the law on which we may be able to come to an agreement as to what kind of suggestions we could make, as Senator Fraser suggested and the chair agreed, and let you make decisions.
Senator Smith: Some massaging in appropriate directions.
Mr. Lamer: I can give you an example. It looks picayune, but why put it there when you do not need it? I will read it to you, and it will give you an example.
Senator Smith: That is helpful.
Mr. Lamer: Please go to 273.65(1).
The Minister may, for the sole purpose of obtaining foreign intelligence, authorize the Communications Security Establishment in writing to intercept private communications in relation to an activity or class of activities specified in the authorization.
Let us go to 273.65(8).
The Commissioner of the Communications Security Establishment shall review activities carried out under an authorization issued under this section to ensure that they are authorized and report annually to the Minister on the review.
When you use the same word in the same section, there is a rule of law — I need not explain to you, Senator Smith — that unless there is a strong indication it means something else, or that it is absurd to give it the same meaning, it has the same meaning.
Senator Smith: Right.
Mr. Lamer: You agree with that?
Senator Smith: Yes.
Mr. Lamer: It is obvious that the minister says at 273.65(1), in part, the following: “...in writing to intercept private communications in relation to an activity or class of activities specified in the authorization.”
To me, what is being referred to there is the activities of the target.
When I go to 273.65(8), it reads, in part, the following: “...shall review activities carried out under an authorization...” It would be absurd for me in my job to be limited to the activities of the target. I am watching over the CSE, not the target. Maybe the target is watching over CSE, but CSE is watching over the target. I am watching over CSE.
Using the rule of absurdity, if I gave “activities” the same meaning, what that means under section 273.65(8) is that I am looking at the activities of CSE. However, we do not need that. Why not fix it? It can be fixed easily. That is one example.
I will give you another example. This takes us to the ministerial authorization, the MAs. Section 273.65(2) reads as follows:
The Minister may only issue an authorization under subsection (1) if satisfied that —
Then there is (a), (b), (c), (d). I assume you have read that.
Do you want me to read that?
Senator Smith: No. “Scanned” would be a more appropriate verb, for me anyway.
Mr. Lamer: You are probably privy to the fact that, in the U.K., there was a recent discussion in the House as to whether the threshold is a reasonable and probable belief or a reasonable and probable suspicion.
Senator Smith: Yes, I have heard about it.
Mr. Lamer: I saw a British person in London explain it on CPAC.
The legislation does not state the threshold to be met. Why not spell it out? If it is reasonable and probable grounds to suspect, well, so be it and let it be said. If it is reasonable and probable grounds to believe, let us say so. That is the traditional one, what a judge uses before issuing a search warrant or a warrant for an arrest, et cetera. They do not use the word “suspect.” Maybe it is a battle of semantics, but maybe it is not. In England, it was not a battle of semantics. It was a hard-fought battle, and I think “suspect” won in the end.
When the poor minister is called upon to exercise his powers under that section, he does not know if it is suspect or believe. He must be satisfied. What is satisfied? What satisfies one does not satisfy another. Thus, this could be spelled out. Those are a couple of examples.
If I were to take you to a few sections of the French version of this act and then over to the English version, both versions being official, it being legislation, there are discrepancies. I referred to those in my annual report. There are discrepancies that are not earth-shaking, as I said at the outset, but that could be adjusted and reviewed.
Senator Smith, these are the types of things I am talking about.
Senator Smith: That is helpful input.
Senator Joyal: I should like to take this discussion a step further in regard to your answer to Senator Smith. We have been told generally that the Criminal Code section dealing with the protection of citizens in the context of wiretapping — because this is what it is; it is wiretapping.
Mr. Lamer: It is interception. Wiretapping is 1945 stuff.
Senator Joyal: Let us put it in even broader terms. We are listening to some conversations; we are listening to people.
Mr. Lamer: Or reading emails.
Senator Joyal: Or reading emails, which is included in what we consider to be private by the normal standards.
When the Criminal Code considers that, for the sake of the public good, an authorization should be given to police forces to intervene into the privacy of a citizen or a person, there is a process in the code, as you well know, as you have interpreted it many times in relation to the Charter.
Mr. Lamer: In dissent.
Senator Joyal: Exactly. I am concerned, in reading section 273.65, the one to which you have just referred, specifically 273.65(2), “The minister may only issue an authorization...” and then looking at the other section dealing with the Minister of National Defence, if we have to analyze the protection that citizens enjoy under the Criminal Code versus the approach that is taken here, are we to depart from the Criminal Code and establish an exceptional system when there is a communication between a person in Canada and somebody abroad?
Does the person in that context enjoy the same protection, or is the protection reduced? As you said yourself, if you go to a judge to get wiretapping authorization, as you quoted properly, you have reasonable grounds to believe that, or, if that authorization is given, it is for a limited period of time.
Mr. Lamer: It is one year.
Senator Joyal: The person can reapply and so on. Then the person has the same protection as any of the other aspects of the disclosure of which the person has been the object.
Mr. Lamer: It is 90 days.
Senator Joyal: Looking into the elements of the Criminal Code in that context and comparing it to the different system that applies to the minister in charge of security and the Minister of National Defence, in your opinion, where are the defining differences? Here I am appealing to your knowledge of the Criminal Code.
Mr. Lamer: That is something we will be looking at starting on Thursday. The difference is that the National Defence Act provides an exclusion, not an exemption, to the Criminal Code. As I heard it said, CSE is exempt from Part VI. CSE is not exposed to having committed a criminal offence if it meets what is set out in section 273.65.
However, that does not mean it is exempt, in my view. My view might not be shared; I might be wrong. I have been in the past, and I intend to be in the future sometime. It is my constitutional right to be wrong.
The act could be clarified in that regard. That is one of the clarifications that could be made. Some people are saying that CSE is exempt from Part VI of the Criminal Code. Someone else, like me, for example, is saying that CSE is not exempt, that it is just excluded from part of it.
There might be a justification in what Parliament did. On the one hand, Part VI of the Criminal Code has to do with the commission of crimes. The National Defence Act has to do with the gathering of foreign intelligence. Is it justifiable that the person who has communicated with the foreign target or that the foreign target communicated with be given the 90-day notice that the interception has occurred? Many of these investigations go well beyond 90 days. We are not talking about the same kind of activity.
Under the Criminal Code, events usually will unfold in a courtroom within a given time. Sometimes, but not always, intelligence gathering is over a much longer period of time. To alert a person that that person in private communications is the object of an interception could dismantle the whole operation.
There is a difference between a police operation and the operation of an intelligence-gathering body. It is for Parliament to choose in listening to the experts. I am not an expert in the technical reasons for there to be a difference. There may well be technical reasons to amply justify Parliament having a different regime for intelligence gathering as distinct from the investigation of criminal offences. That is for the experts and for Parliament, having heard from the experts on the technical side of things.
On the legal side, as I said, I will take the law that you give me, and I will see that it is respected.
I am the wrong person to ask that question of. It must be asked of the experts. Mr. Colter, or whoever replaces him at the end of June — I believe he is leaving in June — will probably be in a position, as well as his experts, to discuss that with the appropriate committee. I suspect you might well have to get into the kind of information that cannot be divulged publicly by virtue of another one of your laws that talks about 14 years in the penitentiary. That is as far as I can go.
Senator Joyal: Sometimes the line is very thin. For instance, if there is a communication between somebody in Canada and a terrorist organization that has been listed by the minister under a different section of the anti-terrorist legislation, and there is clear evidence in the communication that the person is planning to commit one of the other points that are prohibited in Canada, then there would immediately be a decision as to whether that person should be prosecuted or not.
In other words, the communication between that person and that terrorist organization is not just for the sake of piling up information on the terrorist organization. It might immediately lead, depending on the decision of the authorities who read that information, to a decision to immediately charge that person.
That is why that communication you are intruding on is not just for the sake of adding more to the understanding of the terrorist activities or terrorist projects. It may directly involve the prosecution of a person in Canada.
In that context, when you read section 273.65(2), there must be protection that is afforded normally under the Criminal Code. In fact, section 273.65(2)(d) states that
...satisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.
In other words, you have a role to appraise those conversations and to be sure that the person's privacy is protected and that those conversations are essential. “Essential” is a very meaningful term. There is a direct link between the communication and the objective. That is why I raised the question.
It seems to me that you have two objectives in this act. You have outlined the first one, which is information gathering, but it is difficult to see it only as information gathering because it might immediately lead to charges and prosecution.
Mr. Lamer: Senator Joyal, you are right that it could lead to a criminal offence. In 273.65(1), it says, in part, the following: “The Minister may, for the sole purpose of obtaining foreign intelligence...” There is another point of clarification when you go to the definition of foreign intelligence.
Senator Joyal: It is in 273.61.
Mr. Lamer: When you are dealing with anti-terrorism, I can understand your point, but if you go to the general mandate of CSE, foreign intelligence means the intelligence about the capabilities or intentions of foreign individuals or terrorist groups.
The other definition sets up the Communication Security Establishment.
Ms. Weeks: Senator Joyal, if I can take you back a moment to my answer to Senator Jaffer, this is not surgical collection that you are imagining that occurs under a warrant for the purposes of prosecution. This is bulk collection that comes through certain key words and messages. There is no clear identification, for instance, between the speaker at the foreign end and the speaker at the Canadian end. It must be sought out, and it is not done so, frequently; it is only done if the four conditions are met, including the essentiality test.
Where you are perfectly right is in an instance if, by some miracle, it should be determined that someone in Canada is talking to Osama bin Ladin, I can turn you to the main mandate of CSE, which is at 273.64.
Mr. Lamer: The mandate of CSE is wider than being an anti-terrorism intelligence-gathering body. I will read to you 273.64(1):
The mandate of the Communications Security Establishment is
(a) to acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence, in accordance with Government of Canada intelligence priorities.
It is only since 9/11 that everybody is focusing in on that role of CSE. CSE has a political or commercial role. I mentioned this earlier. No one will be accused of anything. We are just trying to find out how our competitors will be voting at the United Nations, maybe. It can cover all kinds of things that are priorities.
It continues under (c):
(c) to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.
Senator Joyal: This is it?
Mr. Lamer: When they are providing technical and operational assistance, they are not acting as principals; they are acting as agents, helping. Therefore, the proper authorization that you are referring to is issued by a Federal Court judge, or by any judge if it is the RCMP that would like technical assistance.
I get your point that, once you have invaded the privacy of a person, that person should be entitled to the same protections as Part VI. However, Part VI was designed for investigation into criminal offences. The Communications Security Establishment was not established for that purpose specifically. It was established to obtain foreign intelligence. It might well be that, incidentally, some of the information obtained from the foreign target will lead to a criminal investigation, but that would be ancillary. That is not the purpose.
I get your point that the legislation must be looked at in respect of what I said about Part VI not applying as distinct from an exclusion from prosecutions. There are two bodies of thought on that point. This is one of the things we will be discussing in trying to help you out in clarifying the law.
Senator Joyal: That is why we are so happy to see you in this position, given your background and reputation as a legal advisor with a lot of experience in the interpretation of the Criminal Code.
Mr. Lamer: I see a problem, and you see a problem. I am saying that there should possibly be a legislative solution to it, along the lines of whatever Parliament in its wisdom will decide.
Senator Lynch-Staunton: In this bulk collection that Ms. Weeks mentioned, how many interceptors are involved in this at one time?
Ms. Weeks: I am afraid that that is operational information, and I think the question might better be addressed to Mr. Colter and to CSE.
Senator Lynch-Staunton: You cannot tell us? You must know. You are reviewing what they are doing, so you must know how many people are doing it.
Mr. Lamer: We know lots of things.
Senator Lynch-Staunton: Is it confidential? We know their budget. We know the number of employees. However, we do not know how many are actually working on the interception side. You mentioned what they do in pulling things out of the air and out of all sorts of other sources. I should like to know if they are working 24 hours a day and pulling down millions of words every day. How does it work?
Mr. Lamer: I endorse what Ms. Weeks has said. I oversee their operations; however, it is up to him to decide to disclose how many interceptions are made.
Senator Lynch-Staunton: If we asked him a question, would he say it is secret?
I should like to know how you perform your work. Mr. Commissioner, you say that you check into the lawfulness of the activity. I want to know the extensiveness of the activity and how you can, with eight people, verify this activity to the point where, so far, you have not found anything unlawful.
Mr. Lamer: One, I referred to spot checks. Second, Ms. Weeks referred to the fact that we do hire outsiders. There are six full-time people in house, but they do not have all the expertise required. When that occurs, we hire people under contract to do a particular spot check.
Senator Lynch-Staunton: Do you look into the lawfulness before the fact or after the fact?
Mr. Lamer: After the fact.
Senator Lynch-Staunton: An illegal act might be committed, and then it would be too late.
Mr. Lamer: It is like the police.
Senator Lynch-Staunton: I would not suggest that the police do spot checks.
Mr. Lamer: They do spot checks, and they do their best. The spot checks are after the fact. There are other spot checks that are done in regards to those kinds of activities that would lend themselves to the commission of an offence.
Senator Lynch-Staunton: Surely, our intelligence agencies here are not immune to the weaknesses or sins of other intelligence agencies around the world where they do not hesitate, if they feel it necessary, to engage in activities that could be considered not exactly within the skirt of the law.
Your commission, as well intentioned as it was drawn up to be and as well as you run it, cannot guarantee that those sorts of activities are not taking place.
Mr. Lamer: My predecessor put that in one of his reports.
Senator Lynch-Staunton: And you are confirming it?
Mr. Lamer: Yes. It is impossible to assure you that there has not been. I have no indication that there has been.
Senator Lynch-Staunton: No. How could you?
Mr. Lamer: Who else could?
Senator Lynch-Staunton: These people are working in secret, and perhaps they are not telling you everything. That is the nature of the beast. That is what intelligence is all about. They are not going to share information with the people who supervise them. I am on your side.
Ms. Weeks: These are not people who are being lowered behind enemy lines under cover of darkness. These are people collecting foreign intelligence. We have looked at their activities in depth and we do very effective sampling.
For example, some years ago we looked at the activities of CSE collections over a month's time. It took us a year to review them. We do very effective sampling that allows us to draw conclusions. The commissioner was very articulate in this year's annual report. He said that, based on the areas he has examined, he can give assurance that in those areas that are risk based he was satisfied that those activities were conducted lawfully.
With any form of review, whether you are talking about the Auditor General or security intelligence, at the end of the day you have to begin with a presumption of innocence. Until such time as there is evidence that people are breaking the law, that presumption of innocence must stand. That is part of the cordial, though not cozy, relationship the commissioner's officer has with the CSE.
Senator Lynch-Staunton: The only thing I can say, and you can deny it, is that you do not have, nor does any other supervising body, any capability to see that an intelligence agency anywhere conforms to the law. The nature of the beast of an intelligence agency is to seek out the information any way it can to prevent illegal activity taking place. We have seen examples of illegal activities taking place in order to get that information.
Mr. Lamer: Even the Auditor General does spot checks. The Auditor General cannot say, “I have checked all of the Government of Canada and I can assure you there is nothing wrong.”
Senator Lynch-Staunton: She has not yet, and neither have her predecessors.
Mr. Lamer: You have to spot check and there has to be some confidence.
Senator Lynch-Staunton: I thought you would say that you could use more manpower and sophisticated equipment to provide us with the assurance that the coverage you are doing is such that our fears could be less forcibly presented the next time you come here. You seem to be satisfied with occasional spot checks, six people and two on occasion, when needed.
Mr. Lamer: There are more than two people on occasion.
Senator Lynch-Staunton: You said you hired two for a special review.
Mr. Lamer: That was recently.
Senator Joyal: I should like to come back to your opening statement, Mr. Lamer, where you mentioned privacy on the one hand and society's collective right to security on the other hand.
You have interpreted section 7 of the Charter on various occasions, and there is a corpus of doctrine of the right to security that any person is entitled to in Canada.
I have a reserve over the collective right to security. Under that heading, it is easy to bring in limits to the Charter of Rights because there would be an over-prevailing right, over and above the Charter, which is the collective right to security. Over and above that right, then Parliament would be allowed to take measures to maintain this collective right to security that supersedes the others.
I have the perception that the rights are individual, especially section 7. If there are limits to section 7, they go under section 1. Section 1 does not establish per se a right to collective security. It is a general clause. There are many implications if we sustain and contend that there is a collective right to security in the Charter or in the Constitution of Canada.
This has been an argument that has been used by witnesses who have appeared before us. Can you give us the benefit of your wisdom of the interpretation of the Charter in relation to the rights to security that people enjoy under section 7?
Mr. Lamer: I have never been involved in the definition of security of the person under section 7.
I will repeat three lines in my remarks. The issue involves on the one hand the democratic rights and freedoms of the individual, privacy being one of them, and on the other society's collective right to security. It is not the word “security” of section 7. We are talking about the Anti-terrorism Act and the kind of security that is put in jeopardy by terrorist activity. You are bringing in the Charter, but I do not think it is life, liberty and security of the person in that sense. I am talking about our security against terrorism. Both are essential values of an open and democratic society. They can be values without being entrenched, but they can be arguments under section 1. Security against terrorism can be an argument that will succeed or not succeed before the courts under section 1. I was not using the word “security” in the sense of section 7.
Senator Joyal: When we use the words “collective rights,” we immediately think of rights under the Charter, such as the right to education and the rights of Aboriginal peoples as a people. You have written much on the subject.
Mr. Lamer: We have a collective obligation toward individuals. The dichotomy between individual rights and collective rights is sometimes misleading. I see society as a creation of the individual for the better protection of the individual's rights. There is a consensus of delegation to people like you to protect our individual rights. It is not a question of collective rights. In other words, a state that has rights is a fascist state.
Senator Joyal: The peace, order and good government clause charges the government to maintain a fair level of order and peace in society to ensure that individual rights can flourish. That is one way of approaching it, rather than in the context of the collective right to the security of society as a whole allowing the government to infringe and take initiatives that supersede individual Charter rights. I believe there is confusion between the words “collective right to security” and the vocabulary the Supreme Court has developed in interpreting the Charter.
Senator Jaffer: I know that we have run out of time. I have three technical questions. Perhaps we can submit them in writing and the answers can be sent to you, Madam Chairman.
The Chairman: Absolutely.
Senator Jaffer: Thank you.
The Chairman: Thank you, Commissioner Lamer and Ms. Weeks. I said at the beginning that the Communications Security Establishment has a certain mystique. After our discussions today, that mystery remains, to a degree. Perhaps one day there will be a movie about your activities, Commissioner. We will all be eager to see it.
Thank you for attending here.
The committee adjourned.