SNAS Committee Meeting

37th PARLIAMENT, 2nd SESSION

Subcommittee on National Security of the Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, June 3, 2003

º

1615

The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.))

Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, National Security, Department of the Solicitor General)

The Chair

Mr. Paul E. Kennedy

º

1620

º

1625

º

1630

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

Mr. Paul E. Kennedy

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1635

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

º

1640

The Chair

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.)

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

º

1645

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

º

1650

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

The Chair

Mr. Kevin Sorenson

º

1655

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

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1700

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

»

1705

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

Mr. Paul E. Kennedy

Mrs. Marlene Jennings

The Chair

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

»

1710

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

»

1715

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

Mr. Kevin Sorenson

Mr. Paul E. Kennedy

»

1720

Mr. Kevin Sorenson

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

Mr. Paul E. Kennedy

The Chair

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CANADA

Subcommittee on National Security of the Standing Committee on Justice and Human Rights

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NUMBER 009

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Tuesday, June 3, 2003

[Recorded by Electronic Apparatus]

º  (1615)  

[English]

    The Chair (Mr. Derek Lee (Scarborough—Rouge River, Lib.)): Colleagues, we are here today to review what we can of the subject of ministerial directions given by the Solicitor General to the Canadian Security Intelligence Service.

    We have with us today, as a witness, Mr. Paul Kennedy, who is the senior assistant deputy solicitor general for national security.

    Mr. Kennedy, there may or may not be another witness with you, but--

    Mr. Paul E. Kennedy (Senior Assistant Deputy Solicitor General, National Security, Department of the Solicitor General): Yes, I have Joanne Gibb with me. Joanne won't be testifying today, but I thought it would be good practice for her--she's a senior policy analyst in our national security directorate--to get a feel for parliamentary things. The first thing is to get up on the front line and see what it's like. And when she has her opportunity to be a witness, she'll be able to give her full attention to you.

    The Chair: That's a great plan. Thank you very much.

    Do you have an opening statement for us, Mr. Kennedy?

    Mr. Paul E. Kennedy: Yes, I do. I believe we provided a deck to the clerk, and I'll take you through it. It's not very long, but I'm hoping it will give you a contextual framework for our discussions.

    I know this committee already is quite familiar with the structure of the Department of the Solicitor General, particularly Madam Jennings, so I won't beat it to death. But just in a thumbnail sketch, in the portfolio we have the RCMP, the Canadian Security Intelligence Service, the Parole Board, Corrections Services Canada, and the department; and as you're aware, there are three review agencies: the commission for public complaints against the RCMP, the RCMP External Review Committee, and the Office of the Correctional Investigator. Of course, the principal senior policy adviser for the minister in regard to the portfolio would be the Deputy Solicitor General.

    In that area, in terms of what the department does, we are to assist him, among other things, in providing effective direction to the agencies. With that in mind, we have the ministerial directives, which we'll be talking about today. The ministerial directives for the security intelligence function predate the creation of CSIS as we know it today.

    The predecessor of CSIS was the RCMP Security Service, and it was as well subject to ministerial direction pursuant to subsection 5.(1) of the RCMP Act. Under that act the minister had statutory power of direction, while the commissioner, of course, had control and management of the force. The direction of the security service at that time included such issues as foreign liaison arrangements, use of human sources, and foreign investigations, to indicate just a few.

    The Macdonald Commission had examined, among other things, the issue of ministerial direction to the RCMP and had recommended the new civilian agency be established “under the direction of the Solicitor General”. So when CSIS was created in 1984, parliamentarians ensured the minister at that time would continue to have statutory power of direction over a security intelligence service, and that power of direction is reflected currently in the CSIS Act.

    The principles of ministerial control and accountability are in fact central to Canadian parliamentary democracy. But I think if one had occasion to look back at the debates that occurred at the time, for instance, and the definitions of threats to the security of Canada, there was an issue as to the scope of those, and they were intentionally crafted to be quite vague so they could be kept current in time. For example, there's no definition of “espionage” and things of that nature. Parliamentarians felt the appropriate way at that time would be through ministerial accountability, that the minister is the one who would give shape and substance to that through his directives.

    The CSIS Act ensures the minister would have full knowledge and power of direction over the policies, operations, and management of the service. The ministerial direction is issued in accordance with subsection 6.(2) of the CSIS Act, so it ensures clear policy direction to the service and ministerial accountability. However, it also provides sufficient operational flexibility, and there's an establishment of accountability criteria in respect of the review agencies--both SIRC and the IG can evaluate CSIS activities. A copy, of course, of all those ministerial directives have to be provided to SIRC.

    MDs, in fact, provide an overall policy and accountability framework. The director approves day-to-day operational activity. The minister must approve certain specific operations, such as the use of human sources at post-secondary educational institutions, and the director must consult the minister in advance on certain sensitive operational activities.

    There are in fact a variety of reasons that give rise to the provision of ministerial directions. Initially, when CSIS was established, most of the directions of the then RCMP Security Service became immediately applicable to the new civilian agency.

    Recommendations made by parliamentary committees have also resulted in direction to CSIS. For example, in 1990, a report by the Special Committee on the Review of the CSIS Act and the Security Offences Act, entitled In Flux But Not in Crisis,recommended that paragraph 2(d) of the CSIS Act, referring to subversive activities, be repealed. This recommendation, which followed on a recommendation made in the Osbaldeston report a few years earlier, resulted in a ministerial direction to cease investigations under paragraph 2(d) of the act. Osbaldeston, as you may recall, recommended that the counter-subversion branch within CSIS be eliminated.

    Finally, ministerial direction can also be issued in response to recommendations made by either the SIRC or the IG. In other words, they're tools you use to address problems.

    Ministerial directions cover a wide spectrum of CSIS activities, ranging from strategic policy, the guidance on the conduct of investigations such as investigations in sensitive sectors, as well as joint operations.

    Issued in February 2001, the ministerial directives, which includes an accountability direction as well as CSIS operational direction, recognized the maturity of the service and shifted some of the responsibility from the minister to the director. For example, when the service wants to amend an existing section 17 arrangement, and that's an arrangement with a foreign government, it no longer requires ministerial approval. The approval authority has been delegated to the director.

    The direction regarding accountability outlines the responsibilities and accountabilities of both the Solicitor General and the director. The minister is responsible for providing CSIS with strategic direction to ensure the service's activities are in line with government priorities and expectations. To this end, the Solicitor General is accountable to Parliament for CSIS activities. The director is responsible for control and management of the service. The director is to inform the minister of CSIS's achievements, as well as potential controversy, and is required to provide an annual report to the minister in this regard.

    The operational direction is strategic in nature and is premised on five fundamental principles that are to govern CSIS operational activities. These principles include the rule of law, proportionality, civil liberties, a graduated approach to intrusiveness, and a higher level of approval for the more intrusive techniques.

    So the direction addresses numerous operational issues, including joint operations, use of human sources, and foreign intelligence collection, to name just a few. The minister is to be informed of any matter that is high risk or potentially controversial in nature.

    According to SIRC's review of the compendium, the new ministerial directive:

...goes a long way to rationalizing the Government’s strategic guidanceof the Service and, in the Committee’s view, reflects a maturation of the legal andpolicy framework that governs the Service’s work. Ministerial guidance is nowconsiderably streamlined, consistent in its use of language and presented in aconcise and cohesive document.

    In addition to the compendium, the minister provides direction on the national requirements for security intelligence. The national requirements are issued annually to the director and contain general direction from the government about where CSIS should focus its investigative efforts, as well as guidance on the service's collection, analysis, and advisory capabilities.

    The direction is strategic in nature, highlighting the government's priorities for the year. The national requirements for 2003-2004 were just issued. I have copies of them with me here, which we are prepared to obviously share with the committee.

º  (1620)  

    In an effort to be more open and transparent, this year's national requirements were prepared as an unclassified document. This is the document that was transmitted by the minister to Ward Elcock, copies of which have gone to the SIRC. So if you would like, I'll have them given to the chair. I have a number of copies here, which you can share with the members of your regular committee.

    Those are freshly dated because there's a statutory requirement for them to be shared with the SIRC. I think you'll find the letters are dated June 2. They were shared officially and signed off by the chair of the SIRC today. So it's fresh off the press. In recognition, as I said, of the important role you have to play, we brought them to you as soon as we could. I won't be leaving anywhere, so you can take a moment and read them, and you'll have an opportunity to put some questions to me.

    But you'll note that this year's directions regarding requirements continue to focus on the major themes, which are counter-terrorism, particularly Sunni extremism, the proliferation of weapons of mass destruction, espionage and foreign-influenced activities, security screening, and foreign intelligence collection.

    Little, obviously, has changed in the requirements over the past couple of years; however, since the events of September 11, a new emphasis and priority has been placed on the importance of maintaining effective liaison and relationships. You'll see that reflected in the document.

    The practice is that the service would take these ministerial directions and convert them into operational policies to be used directly by CSIS staff. This therefore follows a logical progression from statute to ministerial direction to operational procedures. It provides a managed means of ensuring that the service is fulfilling its duties and functions in an appropriate manner.

    The director approves all new policies and modifications, which are first reviewed by the CSIS operational policy committee. These remarks I make in the context of the overarching accountability documents I refer to. What you're seeing here is just one annual document. This is an internal CSIS committee that reviews all policy changes. The department is a member of the committee, which allows us to review and comment on new policies before they are implemented. SIRC regularly reviews CSIS's operational policies to ensure compliance with the CSIS Act and with ministerial direction.

    Ministerial direction is premised on accountability. Several mechanisms exist to ensure that the ministerial directions are being implemented and adhered to. As the eyes and ears of the minister, the Inspector General of CSIS has a role to play in reviewing the service's compliance with the ministerial directions.

    According to the CSIS Act, the inspector general's certificate to the minister must indicate whether any act or thing done by CSIS contravenes any direction issued by the Solicitor General. In accordance with its mandate, SIRC also reviews the ministerial directives. As I referred to earlier, SIRC's recent annual reports have remarked on the compendium of MDs, as well as the annual national requirements.

    In the past, SIRC has examined the adequacy of certain directions, the way in which CSIS has interpreted the ministerial directions through its own policies and procedures, as well as how the directions were implemented in individual cases.

    By sitting on various committees, such as the operations policy committee, the warrant review committee, and the targeting and requirements committee, to name a few, the department is able to monitor the implementation of the ministerial directions as well as compliance with the direction. The minister himself, through regular bilateral meetings with the director, is able to conform adherence to the direction.

    Finally, CSIS publishes an annual public report that highlights the service's activities for the past year. By extension, this confirms that CSIS is following the direction on national requirements.

º  (1625)  

    This is the most recent version of the compendium of ministerial directions. I think it was issued on February 15, 2001. To put it in context for you, it includes two ministerial directions and it is a total of 20 pages in length. I say that because if you have ATIP version, you'll probably look and say, are there pages I don't have here? Is this hundreds of pages or what? It's a total of 20 pages in length.

    The two ministerial directives deal with responsibility and accountability, which is a two-page document, and CSIS operations, which is an 18-page document consisting of annexes A through G. These two ministerial directives replace 26 previous ministerial directions that were withdrawn because there was obviously some overlap between them.

    The compendium was originally released under the Access to Information Act in November 2001. Approximately 70% of the document was released at that time. The portions that were withheld contain information that is either a cabinet confidence or it indicates CSIS operational methodologies--in other words, information relating to human sources and things of that nature.

    The ministerial direction, as indicated, on national requirements for 2003 and 2004, which pertains to targeting, has been released. And you have that document, which has, as I say, been released 100% in its entirety.

    The similar national requirements document for last year, for ATIP purposes, would be about 98% of the document. Actually, a fragment of a sentence has been excised, but we have tried to move on from that and make as much of the document--and we have been able to achieve it here with 100% of it available to you.

    That would conclude my overview for you of the ministerial directives. I'm open for any questions you may have.

º  (1630)  

    The Chair: Thank you very much.

    This particular session may be viewed by some as unusual--at least the chair does--but there's a fair bit of information you have brought to us today, and we thank you for that. It's the impression of the chair that CSIS and the department have been making it easier for the subcommittee to do its work, as we are mandated to do by our elective office and by the House, on CSIS and the related agencies contributing to national security.

    Having said that, it's a gentle thank you. This is not to say that everything will be seen as perfect by all of our colleagues around the table, but the increasing amount of information being provided to this subcommittee is very helpful to us as we do our work.

    I'll go to Mr. Sorenson for seven minutes.

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you. I want to thank the Assistant Deputy Solicitor General for coming today. Every time I seem to acknowledge him, I call him the deputy assistant, not the Deputy Solicitor General. He's corrected me before, so I think we got it right this time.

    It's timely you being here. CSIS has been in the news recently, and there have been certain questions that have been posed regarding the way CSIS goes about their business and the way they carry out day-by-day operations. Obviously Air India has come up in the media in the last few days, and CSIS has again been thrown into the public eye, where people are really wondering who's accountable, who makes decisions?

    Before we really get into that, though, I do want to ask you a question regarding these ministerial directions. How often, normally on average, is there a new directive, or a new direction, given to the director at CSIS from the minister?

    Mr. Paul E. Kennedy: We have a ATIP version, and we can make that available to you. The documents are crafted now with the experience gained since 1984. Clearly, in their early years things would come up; there were traditional growing pains. You'd look and say, you have a problem here, you have a problem there. Some of them were driven by case-specific....

    What we did, starting around 2000, around that time, was actually go back and look at them and say, let's get the structure right. That's why we came up with this accountability document. It's broad enough that it sets out really the principles in terms of accountability, what you would expect from this person. It's broad enough that it generally ought not to require a new item that would come up.

    We have almost 20 years of experience now to look back on, so I think we've scoped out that relationship. It's cast in such a way as to certainly put upon the director an obligation, as I indicated, for anything of great controversy, political sensitivity, risk factors, things that might damage the reputation of Canada or of the institution itself, CSIS. The behaviours are there. There's a great deal that has been learned through the years.

    To my knowledge, since we issued those in 2001, we haven't had to issue something specific. In other words, the others are a good framework that capture all the behaviours; it puts the onus on the director to have his antenna up to spot something and to come forward and address that with the minister.

º  (1635)  

    Mr. Kevin Sorenson: Were these directives then part of the CSIS Act in 1984?

    Mr. Paul E. Kennedy: Yes.

    Mr. Kevin Sorenson: Were there directives that would have been issued in the same manner to the RCMP prior to 1985?

    Mr. Paul E. Kennedy: Yes, there were directives in place dealing with the security service of the RCMP. A lot of those in the first days carried over in terms of operational behaviours--some of the things we're talking about, such as the investigations on sensitive sites or locations. University sites clearly are an example. Things like that say these are sensitive areas. If you're going in there for national security work, you generally need prior ministerial approval. There was a regime in place that dealt with it, and the same thing with foreign liaison, for the intelligence service. When things came over in 1984 they rested in place. Then they were tweaked and augmented as they went along, and they stayed there and they pulled them together as a compilation of those things that guided the service.

    A lot of them had to then be taken and expressed in their operational policies. What we had was a bit of a grab bag of documents, and we thought, okay, it's time to rationalize these things. Some were case-specific and the event wasn't going to reoccur. Some had been overtaken by operational policies that were now in place in an organization that was more mature. That's what caused us to sit back and say, okay, let's put a structure in place: here's your overall accountability; here's your response; here's where we'll give you a little bit more room as a director; and then here's the criteria where I expect, as a minister, for instance, to be engaged.

    The document that does get issued yearly is the document I've just handed to you, which is the annual targeting requirements. One natural concern that people would have is, if you have an intelligence service that is out there collecting things, its purpose is to advise the Government of Canada. It should not be an agent in and of itself. The ultimate accountability is to make sure the government is the one that is deciding what is important to it. This is a risk management tool, because you're not going to have enough resources to address all the possible threats out there. You have to go up to a very senior level and say, what is it that you, government, want us to look at? That is expressed in this document from the minister to the director, saying this is where you should be directing your primary effort. That's not to say that something else can't come up during the course of the year and then obviously expect you to react to it, but this is primarily where your focus should be.

    Mr. Kevin Sorenson: I was watching a program the other night on CSIS and they showed how there were other directors of CSIS, how they've come and gone and why they've come and gone. Part of the documentary talked about director accountability. Ultimately, everything should really come back to ministerial accountability, shouldn't it?

    We've seen some directors of CSIS who have been given the fast train out of town because of one issue or another. But according to the documents I have here today, the director, under the direction of the minister, has the control and management of the service and all matters connected therewith. The director is responsible, but there is ministerial accountability even over and above that.

    When there is a threat, say, or an issue that comes forward, who determines a change in--I don't want to use the word “mandate” because I recognize CSIS has a general overall mandate of the security of our country. Who would decide that we need to have a directive issued now because there's a new threat? Is it based on threat, or is it based on, all of a sudden, September 11? Was there a new directive immediately after September 11?

    Mr. Paul E. Kennedy: No. The requirements, they said, are global in nature, of the world as we know it when that document was issued. The director and his employees are charged continually with scanning the threat environment to see if something is coming up that would fit within the definition of threats as defined in section 2. This is intended to be flexible. It's not in concrete, saying this is all you do. The service would be driven, in terms of its mandate, by the definitions under section 2 of the act, not just by the criteria we have established for you here.

    When a new threat emerged, they would look at that. The normal process is that threats start at the bottom and work their way up. The ones we've articulated by document are up here already before the public eye. When something new comes on the screen, it normally comes in through an analysis of what's in the public domain or in information-sharing agreements with another country. It would come in, and then they have what they would call a TARC. There's a committee that looks at targeting and analysis. Then they go through levels one, two, and three, which indicate the level of knowledge of the issue, the level of intrusiveness of the techniques.

    Level one would be what they call open source information and sharing with other ones. Level two would be if there were specific targets here, where you would be doing surveillance or you might be directing human sources. Level three would be the precursor that would cause you then to say, in addition to the techniques we have--all those that are non-warranted--we would have a requirement access to a judicial authorization for search warrants, intercepted communications, and things of that nature.

    The threat doesn't usually just appear spectacularly out of the blue. It comes, and then there usually is a growth pattern to it. Don't forget the service is the tripwire. It's out there early looking at things that are coming. Normally, it is not going to be caught unawares. It is looking at those things. It is studying those things as they come up. If there was something new that would be out there, there would be occasions certainly for the service to bring that to the attention of the minister.

    There are regular bilateral meetings with the minister where those things are discussed. Under statute, we sit on all the committees where they look at those--one, two, three--and the warrants, and in addition, the minister has to personally approve every application before it goes to court for judicial authorization. The minister, by definition, knows what's going on.

º  (1640)  

    The Chair: Thank you, Mr. Sorenson.

    Ms. Jennings.

    Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): In your national requirements, a document that you just gave us, on page 2 in the third paragraph, it talks about, “To a lesser degree, Canada is confronted by domestic terrorism”. Then, if we go down to the fourth paragraph, we're no longer talking about domestic terrorism; we're talking about domestic extremism. It says:

...domestic terrorism issues related to: aboriginal rights, white supremacists, sovereignty, animal rights, the environment, and anti-globalization.

    Wouldn't a proper term more likely be “domestic extremism”? I think most Canadians, when they would define terrorism, would not define what we've experienced to date in Canada on aboriginal rights or white supremacists or on the environment or anti-globalization or animal rights as terrorism. They might describe it as extremism. I'm just wondering why the two terms are being used.

    Mr. Paul E. Kennedy: All I can say is we could take that subtly on board for you. The reality is, as you know, under the definitions of threat to the security of Canada, and really what we're talking about here is the definition under paragraph 2(c), there is no definition of terrorism. The word “terrorism” does not appear. This may be just a shorthand to express any kind of extremist behaviour that promotes the use of violence “against persons or property for the purpose of achieving a political, religious or ideological objective”. That's what it says. We can take it under consideration, as to whether or not we have to call it terrorism or extremism.

    Mrs. Marlene Jennings: It just hit me because I read that and then I get to the next paragraph and we're talking about extremism. That's when it hit me that most Canadians, in talking about the kind of violent activities we've experienced in Canada on some of those issues such as aboriginal rights, if we're talking about Oka, animal rights, anti-globalization, what happened in Québec City, would probably be more comfortable with the term “domestic extremism” than they would with “domestic terrorism”.

º  (1645)  

    Mr. Paul E. Kennedy: We'll note that.

    Mrs. Marlene Jennings: Yes.

    The other thing is on counter-intelligence, the economic security. Are you in a position to tell us what percentage of CSIS's investigations cover economic security? This is:

...illegal, clandestine, or coercive attempts by foreign governments to gain unauthorized access to economic intelligence, such as proprietary information or technology, for economic advantage

    Can we have an idea of what percentage of their investigations actually cover that?

    Mr. Paul E. Kennedy: I don't have a percentage. I can try to get it for you.

    Mrs. Marlene Jennings: It would be interesting.

    Mr. Paul E. Kennedy: I can tell you that certainly more than 70% of the resources are dedicated to counterterrorism because clearly that's the major concern. By definition, the balance would be in other areas, including counter-intelligence, and a portion of counter-intelligence is that very topic. There is no doubt that it is a concern of Canada because we do have major institutions in terms of technological advances that are of interest to other countries and we know they are targeting them.

    I'll try to see if we can extract that from our colleagues at CSIS and see if we can articulate it as a percentage. I think what you may find is that if they're state-sponsored, some of the states we're looking at have a menu of things they're doing here, and that's on their menu. It would be difficult to tease that out as a separate item by itself.

    Mrs. Marlene Jennings: Okay. Thank you.

    This is the other question I have. You were talking about the three levels of intrusiveness--least intrusive, intrusive, more intrusive. Is there some actual list or criteria that has been developed in order to determine the level of intrusiveness the investigative techniques should acquire in order to have proportionality between the risk assessment of the threat that's perceived, so that's it's not just a pie-in-the-sky, up-in-the-air...?

    Mr. Paul E. Kennedy: I don't know. I'd have to check and see. Clearly there are documents. But whether or not I can get access to them in the least.... I'll find out for you about that.

    Mrs. Marlene Jennings: One thing is clear, Mr. Kennedy, if you're able to at least at some point state that there is a very well-elaborated and defined set of criteria that is to be used in determining one. We already know that there are these models for risk assessment--determining the level of risk, of perceived threat. Then, on the other side, is there the same kind of model to determine the intrusiveness of the investigative techniques that would be appropriate, given the risk assessment in terms of the perceived threat?

    Mr. Paul E. Kennedy: I can tell you from my own personal experience, having sat on that committee through a number of years, that there are very rigorous procedures in place. The meetings are chaired personally by the director of the service. Detailed documentation has to be prepared as to what the threat is, how it meets the definition in section 2, whether or not there are objective standards there as to what it is--the validity and reliability of the information that is there--because that's a factor.

    Those are all assessed, and they start off with one, two, and three, as I've indicated. They are for specific duration, so they are subject to re-examination and review, and the case has to be made, on each case, to move it from level one to level two. When it goes to level two, it would be on the basis that the threat is there; that it's continuing; that it has proven to be substantial; that the technique you're employing at level one is inadequate to show that the investigation can be advanced further--in that sense, therefore, the proportionality between the threat as known and the adequacy or inadequacy of the means available--and then a judgment is made to raise it to the next level.

    Very conscious and careful decisions are made at each of those levels, and then the final one is the same thing. As you work up, you're causing resources that are sensitive and expensive resources to be deployed. Selfishly, these things such as surveillance and things like it are not used unless the case is there to demonstrate it is serious, that it is proportionate, that it is worthwhile pursuing, and that there is a threat that clearly falls within the definition.

    Then it goes to the next level. That level three, obviously, is the most difficult, because it means you are now getting ready to go off and prepare a warrant application to engage all the machinery of the court, as well as the rest.

    So there's a formal committee structure with representation from a variety of players around the system, very strict criteria are used, and the case is documented.

    I hope that helps.

º  (1650)  

    Mrs. Marlene Jennings: That really does help. I have a little familiarity with normal police investigative techniques and the process the average police officer has to go through to get, say, an arrest warrant or a wiretap, just in their ordinary criminal investigation. There doesn't appear to be anywhere near the kind of governance or oversight involvement, in the sense of the number of people who are actually involved internally in making the decision to go to, say, what you're talking about--the third level, which is the most intrusive--to determine within the department or agency that this now warrants going for a judicial order for wiretapping, or for some other kind of intrusive electronic surveillance, etc.

    I think this is quite important, because you do not have that same level of care. That's not to say that the police are not doing their job well, but they're doing it in a completely different context with different requirements. It may not need--probably does not need--the same level of involvement.

    Mr. Paul E. Kennedy: The history here, I would just point out, is that it's very rigorous and highly centralized, and part of the reason, if you look at the definition of threats to the security of Canada, is that clearly you can be looking at activity that may not necessarily be unlawful on its face. There has to be something that makes sure there is an appropriate balance here.

    You see in the definition there's a caveat, which is that those threats and so on do not include “lawful advocacy, protests or dissent”. Part of the contract, if I can call it that, that the government of the day had with Parliament and the Canadian public is that there would be ministerial oversight to make sure there was rigour given to the fairly general words. You need the words to be general because the threats mutate and evolve.

    I've been involved in both the police side and the national security side, so I do both. I did wiretaps in the courts and on the police side as well. The process here is extremely rigorous also in terms of personal accountability by the director, and for warrants by the minister, before we even get to court. In the court, you're into the same context as you would be with a police warrant.

    Obviously, a major difficulty for many people is that when this was put in place, CSIS warrants could be for up to a year in duration, which was quite unique, but that's because of the nature of the threat. Police warrants were normally 30 days. They put them up to 60 days, and they're renewable. For organized crime cases, it has now been extended up to one year, and I believe it's one year for terrorist offences as well. That is a change on that side.

    The other aspect is, we have SIRC and the IG and vehicles like that--and of course parliamentary committees--to look at it. On the police side, the reliance is upon the fact that charges are laid and you go to court, and presumably the judge will be there to straighten you out if you've done something wrong. That is your feedback cycle.

    The Chair: Thank you, Ms. Jennings.

    Mr. Sorenson, we are at three-minute rounds now.

    Mr. Kevin Sorenson: You may have already covered this, but if CSIS is involved in some type of investigation, how is it determined when they need a ministerial directive? Is it CSIS that would say, this is outside our mandate, or this is outside what we would normally do? How is it determined that a ministerial certificate or a directive is needed, and who is involved in the making up of that directive?

    These are fairly general. What we have here is this annual report. I realize it is unclassified. It is a fairly general “feel good” type of ministerial directive, I guess.

º  (1655)  

    Mr. Paul E. Kennedy: Are you looking at the annual requirements?

    Mr. Kevin Sorenson: Yes.

    Mr. Paul E. Kennedy: There are two things. We have talked about what I just talked about, which is the accountability document Madame Jennings was referring to. We have institutional, in-place, structured, ministerial directions that deal with responsibilities and accountabilities. I will just take you through those so that in your mind you will know what the two are.

    Those are the ones that set out the principles and guidelines for what the director is going to do. There are certain things by statute that the director has to get approval for.

    Mr. Kevin Sorenson: And that's the annual one?

    Mr. Paul E. Kennedy: No, that is what we will call an add-on. There's a separate one from that. I just gave you this one because it is hot off the press.

    But I said we have another series of documents. Those are the ones from 2001. It was a compendium, and it dealt with responsibilities and accountabilities for the service. They are in place. They set out all sorts of guidelines, both by statute and otherwise.

    There are some things the director just has to come to talk to the minister about. There are others where, through ministerial directions, the minister says, “This is how I am putting out some markers for you as to how you perform your duties and functions. You have to observe the rule of law; the techniques you use have to be proportional; you have to use the least intrusive technique, and if you are going to use a more intrusive technique, you need to make sure you have higher levels of approval before you use it.” There are all those requirements.

    That's the document I have here, “Ministerial Direction--Responsibility and Accountability”.

    Mr. Kevin Sorenson: With “Confidential” written on top?

    Mr. Paul E. Kennedy: Yes. That should obviously be removed, as it's declassified.

    That is the document I was talking about. It sets out various things. On security assessments there are guidelines. It says investigations have to be balanced; that an individual will be given an opportunity to resolve any doubts when you are doing a security assessment; that the data is going to be retained separately from investigative files; that you have to take steps to ensure the information is accurate. These are things we set out.

    If you are going to do foreign intelligence collection, there is a line that in addition to all the statutory bells and whistles, there is a requirement to ensure adequate and consistent protection of information about Canadians in the preparation of reports for disclosure, because your focus is on the foreign entity--although foreigners, if your interest is Canada, are going to obviously be talking about Canada.

    There is a whole series of guidelines we have put down in there. “Arrangements and Cooperation”--these are the structured ones, where we say that the service “will inform the Minister of any situation concerning an arrangement which could result in controversy, the cancellation of the arrangement, or which might adversely affect interdepartmental or intergovernmental relations.” We talk about annual reports giving a status report on those documents. We talk about compatibility with our foreign policy. These are all the frameworks we put in place for them.

    In addition to that framework document that says “this is what I want to know about, either by statute or by ministerial direction”, we have the document I just handed out at this meeting, which deals with the annual activities. It is something that goes forward each year. These others are institutionalized.

    For the document dealing with the targeting area, clearly we rely upon the intelligence service to come to us to say what is out there, what they have been investigating, what the new trends are, and then get confirmation that they are going in the right direction. There will be a bit of the normal bureaucratic push and pull as that document is crafted. Then it goes up, the minister looks at it, the minister agrees, and then provides direction.

    Actually, it isn't just the minister. It goes to a cabinet committee that would look at the whole picture, and this is one aspect of that picture. Then it is articulated back through the minister to CSIS.

    If an issue came up, there could be something causing an event to occur. SIRC might look at something in terms of its reports because it hears complaints or does its own investigation. It can, on its own initiative, look at any file in the service. In addition to that, the IG can look at any file in compliance. If they spot problems, or if we, through our interaction, spot problems, we would obviously carry on a dialogue with the minister and say, “I think we need something here. There is a little bit of a hole. We need to have some parameters put in place.” That's historically how those things came about.

»  (1700)  

    The Chair: That was perhaps a double three-minute round.

    Could I just recap? We may be using different terms for different things or the same thing. In terms of ministerial directions, you have referred to a “compendium”. Is that the document we now describe as the “Responsibility and Accountability” direction?

    Mr. Paul E. Kennedy: That is correct.

    The Chair: Okay, that is one.

    We no longer have the 26 MDs that were withdrawn.

    There is also referred to in the deck an “Accountability Direction”, but I presume that is this one as well.

    Mr. Paul E. Kennedy: That is correct.

    The Chair: Then there is something called a “Targeting Direction”, but I have to infer that the targeting direction is actually the annual national requirements direction. Is that correct?

    Mr. Paul E. Kennedy: That is correct.

    The Chair: So we are using double terms for everything here. Instead of four, we really just have two.

    Then there is other category shown in the deck called the CSIS “Operations Direction”. Could you just--

    Mr. Paul E. Kennedy: That's page 2 of the document you referred to, “Responsibility and Accountability”. If you flip to the next page in, you will see “CSIS Operations”.

    The Chair: So it's really “responsibility and accountability in operations”, if I had to pick a name. That's fine.

    So we have everything here--

    Mr. Paul E. Kennedy: Yes.

    The Chair: --notwithstanding the five separate labels. Okay, I am happy with that.

    Now, Ms. Jennings for three minutes.

    Mrs. Marlene Jennings: My question has to do with the ministerial direction to CSIS that it is to inform the minister of an issue, investigation, or situation that could raise public controversy, like...?

    Mr. Paul E. Kennedy: Obviously, it would be something on the basis of an activity that might be launched. It would be in the context of a risk assessment. Most of the activity carried out is not public activity, but there can be activity carried out with certain risks attached to it. So it's within the mandate of the service--which is not at issue--and the justification is there to do it.

    It is just to say that by way of pursuit of the particular objective, if things do come to light, there may be some controversy, so the minister is alerted and prepared for it, because he should be informed.

    Mrs. Marlene Jennings: Okay.

    The other question I have is also about the national requirements. In the second line from the top of the very first paragraph on page 5, it talks about how CSIS is “directed to...provide Canadian decision-makers, and the intelligence community with relevant, comprehensive, policy-neutral intelligence assessments”.

    I have to say that policy neutral intelligence assessments must be a bit of a challenge at times, because people don't necessarily check their value systems at the door. Our society is based on a certain set of values. Our government is supposed to be advancing those values, and therefore policy is normally developed on the basis of those values.

    So to me, policy-neutral intelligence seems like a bit of an oxymoron. Honestly, it does.

»  (1705)  

    Mr. Paul E. Kennedy: I suppose one would have to look at the actual assessments to see if they're policy neutral.

    Mrs. Marlene Jennings: You've had a chance to look at them. Do you think they are neutral?

    Mr. Paul E. Kennedy: Yes, I have. Well, the intelligence service is a highly professional organization. If you actually look at what its mandate is under section 12, that may be driven in part by--

    Mrs. Marlene Jennings: I've looked.

    Mr. Paul E. Kennedy: The only reason it exists is to provide advice, and one of the drivers, obviously, in separating the intelligence service from what was then the RCMP was not to confuse the role between adviser and doer. So the nature of that activity drives you to excel at what you do, which is to do analysis and to really strategically put advice out there for people. I certainly have been impressed by the quality of work I've seen in that area.

    In addition to whatever they put out, though, we also have the department, which is able to look at it and to push back if there's a problem. Since they are advising other institutions within the Government of Canada, these recipients of the advice, conversely, can push it back if it were inappropriate. So there certainly has been a practice to make it policy neutral: “We provide advice and someone else can make the decision”. That's a discipline going with that kind of institution.

    Mrs. Marlene Jennings: So that's quite different from, say, the CIA, where it has become public over the past decades that it has actually been involved in activities that were definitely not based on policy-neutral intelligence.

    Mr. Paul E. Kennedy: There's no doubt CSIS and the CIA are not the same kind of institution. I'm not going to get into what the CIA is and what the CIA does, but--

    Mrs. Marlene Jennings: We don't go about financing military coups and things like that. Right?

    Mr. Paul E. Kennedy: The only activity of the service is to collect information to the extent it is strictly necessary, to analyze and retain that information, and to report and advise the Government of Canada.

    Mrs. Marlene Jennings: Excellent.

    Thank you.

    The Chair: Thank you.

    Mr. Sorenson for three minutes.

    Mr. Kevin Sorenson: What role does the minister have in any of the applications for warrants CSIS requests?

    Mr. Paul E. Kennedy: He would look at every one of those.

    The process would be that the documentation is prepared by the justice department's counsel working with the intelligence service. It would go to a warrant review committee, chaired by the director of the service, with the justice counsel sitting there independently as a devil's advocate, to be satisfied as to the legality of that. One of my DGs sits on that committee as well, to make sure they're satisfied the warrant is appropriate and meets all of the requirements. It would then come over the department to our legal counsel to look at it independently for the department. I would look at it personally, it would be looked at by the deputy minister personally, and then it would be forwarded to the Solicitor General for his personal review. I've sat with him and gone over them, and he's very thorough.

    Mr. Kevin Sorenson: Just give me a ballpark figure. How many warrants would be given out every month on average?

    Mr. Paul E. Kennedy: Rather than guess, I think the SIRC annual report indicates the number of warrants that are prepared. But I can tell you there are cycles, because there are year-long warrants. Depending on what month you are in and when they are spread out, I can be very busy.

    But maybe we can give you the totals we have. I believe they are available in the SIRC annual report, both on section 16 and section 12.

    The Chair: The SIRC annual report has an annual tally and an historic tally going back two or three years.

    Mr. Paul E. Kennedy: I can assure you every one of them is looked at personally by the Solicitor General, who receives independent advice when he looks at them.

    Mr. Kevin Sorenson: So there is no overall ministerial directive on warrants. He individually sees every one crossing his desk.

    Does he ever nix them?

    Mr. Paul E. Kennedy: He can.

    I would rather answer the question historically. Have ministers looked at some of them and asked that they be changed, and things like that? Historically, ministers have. They have exerted their authority and may require someone to go back to get additional information, or things of that nature. There are--

»  (1710)  

    Mr. Kevin Sorenson: CSIS is bound to use the least intrusive measures possible anyway, so perhaps one reason the Solicitor General or a Solicitor General would question a warrant would be when he might say, “Is there a less intrusive way?” It may be a warrant for a wiretap, and there may be a less intrusive method. So he may do that, but it doesn't happen very often.

    Usually, when they come asking for a warrant, they understand they are within their--

    Mr. Paul E. Kennedy: I can tell you, these things have an extremely rigorous approach. I have indicated some of them: the percolation from TARC level 1, 2, and 3 before they go up, which usually happens over a fairly significant period of time as the investigation proceeds. Then you go to the warrant process.

    This is not overnight, unless there is a really unusual thing or an immediate crisis threat where you have to get it.

    The statute normally requires you to use other investigative techniques as well. Have they been tried? Have they been shown to work? Have they failed? Is this likely the only way you can get the information? So there are statutory requirements that the judge who receives it will require you to satisfy.

    So in addition to the lengthy and rigorous process in place, and the independent advice we had provide to the minister to satisfy him that all these things had in fact been there, the affidavit would itself show whether other techniques had been tried and failed; whether they were likely to succeed; why this would have to be done; and why other less intrusive techniques.... This is on a sworn affidavit. The judge is required to consider this prior to granting authorization. So this is very, very detailed.

    Mr. Kevin Sorenson: So if a warrant were requested, let's say for electronic surveillance, but the information they obtained didn't really help in the investigation or was deemed to be unimportant, how long would it normally take before SIRC can get rid of that information?

    Mr. Paul E. Kennedy: I don't have the timelines.

»  (1715)  

    Mr. Kevin Sorenson: What are the requirements or the regulations?

    Mr. Paul E. Kennedy: There is a process. If you look at section 12 of the CSIS Act for normal domestic security cases, there is a requirement that, “The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary”. The service has interpreted that to mean that it has information, it will look at it in the context of the threat it has, and it will dispose of the information if it is either not relevant or not required. There are schedules for disposal, which I believe are in place. In any event, they would be mandated by the Privacy Act, the National Archives of Canada Act, and various things like that. So they would have to articulate what those are in their operational policies, in addition to complying with those two other laws.

    If the information is not required, then the information would be disposed of. That would apply generically to information, regardless of how it was collected, because it could be surveillance information, human source information, or whatever it may be. Wiretaps are just one vehicle for collecting information.

    The other thing to bear in mind is the obligation of the intelligence service, which is not a police force. It is not collecting evidence for the purpose of introducing evidence in a trial, so you can't confuse the roles. A police force that collects information is going to retain it in a certain fashion to meet evidentiary standards at trial, as you would do with wiretaps. The function of an intelligence service is to collect intelligence and to advise the government. Section 19 of the act sets out the regime in terms of its disclosures, in addition to its general mandate.

    There are other things that come up, so CSIS may find some information it could disclose that is relevant to “investigation...of an alleged contravention of any law of Canada”, that relates to the “international affairs of Canada”, or to the “defence of Canada”. And there is another category, a general or catch-all category, under paragraph 19(2)(d), where the “public interest...clearly outweighs any invasion of privacy”.

    You are dealing with an intelligence service, not a law enforcement agency collecting evidence to prove something in court. Therefore, this drives the retention practices.

    The Chair: Thank you.

    I have a couple of questions to ask, if I could.

    In terms of the ministerial directions before us, are there any other ministerial directions in existence that we haven't discussed here today?

    Mr. Paul E. Kennedy: No.

    The Chair: There are none.

    So is there no additional document dealing with liaison with the RCMP? Is there a document dealing with that?

    Mr. Paul E. Kennedy: There is a memorandum of agreement between the two organizations. It was certainly in place, and it goes back a number of years. It deals with how they facilitate....

    If you're dealing with CSIS and the RCMP, they actually have an exchange of personnel to help sort out what they're doing, to make sure they cooperate effectively, and things of that nature.

    The Chair: Are they so close they don't need an agreement any more? They just--

    Mr. Paul E. Kennedy: They would hopefully work well together.

    The Chair: They have sleepovers.

    Mr. Paul E. Kennedy: They have an exchange of personnel. I believe there is a senior intelligence officer working with the CID, and vice versa. There is an RCMP secondee, who is working on the counterterrorism desk at the service. They have regular meetings, and they talk and work together. That's their job.

    The Chair: The only other issue was the leakage issue.

    I'll just close with this. The documentation you have provided is good, but some of it is photocopied and still retains references to “confidential and “top secret”. So in the future, there is no point in whoever is doing this leaving the term “top secret” on a document copied for distribution. It just makes people pause a little bit.

    Mr. Paul E. Kennedy: You are quite correct.

    I think one other thing we will try to do is perhaps go back to give you a fresh copy without a security classification on it. But as well, there might be some documents where you think more has been excised than really has; in other words, it might be a document with a line at the top with a big stamp on it. It likely gives the impression a page has been deleted, but that's not the case.

    So maybe we could go back to look at the document and actually show that a page is largely blank, or something of that nature, and also take away the security designation on the document.

    The Chair: Yes, the justice committee has fought battles over one-line blackouts previously. But anyway, I take your point. That's great. In fact, I don't think they use blackout any more; they use whiteout. It's less of a red flag.

    I'm not complaining about the content at all, just that superficial thing.

    Mr. Paul E. Kennedy: Okay.

    The Chair: Mr. Sorenson.

    Mr. Kevin Sorenson: Is there any body that checks the number of warrants or the warrants issued or requested by CSIS? At the end of the day, do we know that they've asked for this many warrants and these were the warrants...SIRC?

    Mr. Paul E. Kennedy: Both SIRC and the IG look at the warrants that were applied for, they look at the affidavits filed in relation to those warrants, and they check in great detail, in terms of the accuracy of the information that is contained in the affidavits. I know from my own personal experience, in one year, where a random audit was done of the affidavits between SIRC and the IG, they constituted 100% of the warrants that were applied for.

    So, yes, they are looked at. Both those bodies do so.

    Mr. Kevin Sorenson: Does the Solicitor General approve all CSIS warrants before they're requested, before they're made?

    Mr. Paul E. Kennedy: No, he approves them all prior to their going to the court. An official from the department would sit on the committee, chaired by the director of the service, that would look at a case they thought was now ready to be forwarded for an affidavit and have a warrant prepared for it. We would have someone at that stage; therefore, we'd know this case had reached that level of maturity and it was going to go.

    The next time we would see it would be when the warrant and the affidavit came back in almost complete form, before the director of the service, again with justice counsel and with a representative from the Solicitor General, who would look at that and say, “Okay, that's approved for submission to the minister for his consideration”. Then that document would come over in the finished form for the minister to approve. He has to approve the individual to go to court and apply for it, and he also approves the content. When that comes over, he receives separate, independent advice again as to what's in the document and if there are any problems or anything of that nature.

»  (1720)  

    Mr. Kevin Sorenson: Thank you.

    The Chair: Okay. I have one last issue.

    You earlier referred to the fact that the director of CSIS now has the managerial discretion to open up relationships with counterpart agencies in Canada or abroad.

    Mr. Paul E. Kennedy: I think I referred to amendment of existing agreements.

    If the service wants to enter into any kind of agreement with a foreign agency of another country, under section 17 of the CSIS Act he requires the approval of the minister and of the Minister of Foreign Affairs. He has to consult with the Minister of Foreign Affairs, and then there has to be approval by the Solicitor General. When that happens, the agreement can be put in place.

    Those agreements, again, are at different levels of cooperation. They're reflective of Canada's security needs--whether or not in some cases we're just providing training to other countries, because some countries want us to train them as to what an intelligence agency should actually be like and how it should perform its things. There might be information dealing with visa-related issues, because people are coming from those countries and they have information. And obviously in other countries that are more sophisticated, where we have greater faith in the integrity of their process, the exchanges might be a bit more profound.

    So those go up. There's an annual audit and a report by the director to the minister on the state of those arrangements, whether or not they're relevant and how they're functioning. So he has an ability to amend the agreements, but only after there's approval by the minister, and obviously prior consultation with the Minister of Foreign Affairs.

    The Chair: What operational direction or other legal requirement requires the director to report annually or periodically on these agreements with counterpart agencies?

    Mr. Paul E. Kennedy: The ministerial direction is the one that requires him to report.

    The Chair: And that's one of the directions here?

    Mr. Paul E. Kennedy: Yes.

    The Chair: Okay.

    Seeing no further questions, I want to thank you very much for coming today and bringing us up to date. I especially want to thank the Solicitor General and your department for enhancing the level and degree of disclosure. It will be helpful to our colleagues here on the subcommittee in our further work.

    We can adjourn.