I'd like to thank the committee for inviting me to speak on Bill , the most comprehensive and far-reaching reform to national security in Canada since 1984. I would like emphasize that I am not a lawyer. However, I do have experience working in national security and intelligence, and I study this area for a living. Indeed, in the interest of transparency, I would like to state that from 2012 to 2015, I worked at the Canadian Security Intelligence Service as a strategic analyst.
My comments are, of course, my own, but they're informed by my research and experience as the national security landscape in Canada has evolved in a relatively short period of time. All of this is to say that today my comments will be focused on the scope of this bill and will address some of the areas that I believe this committee needs to, at the very least, consider as it makes recommendations.
First and foremost, I wish to express my support for this bill. I believe it contains four important steps that are essential for Canadian national security and the functions of our national security agencies.
First, it provides clarity as to the powers of our national security agencies. There's no better example of this than part 3, the CSE act, which gives our national signals intelligence agency statutory standing and spells out its mandate and procedures to a reasonable extent. Given that the first mention of this agency in law was the 2001 Anti-terrorism Act, this bill takes us a long way towards transparency.
Second, Bill outlines the limits on the power of our national security agencies in a way that will provide certainty to the public and also to our national security agencies. In particular, the bill clarifies one of the most controversial parts of the current legislation formerly known as Bill , that is, CSIS' disruption powers.
While it might be argued that this is taking away CSIS' ability to fight threats to Canada's national security, I disagree. Having found themselves embroiled in scandals in recent years, it is little appreciated how conservative our national security agencies actually are. While they do not want political interference in their activities, they no doubt welcome the clarity that Bill provides as to these measures.
Let there be no doubt that the ability to disrupt is an important one, particularly given the increasingly fast pace of terror investigations, especially those related to the threat of foreign fighters. In this sense, I believe that Bill hits the right balance, grounding these measures squarely within the Charter of Rights and Freedoms.
Third, Bill addresses long-standing problems related to review, and in some cases oversight, in Canadian national security. I will not go over the problems of our current system, which has been described as “stove-piped” by experts and commissions of inquiries. I will, however, state that the proposed national security and intelligence review agency, NSIRA, and intelligence commissioner—in combination with the new National Security and Intelligence Committee of Parliamentarians, NSICOP—create a review architecture that is robust and that I believe Canadians can have confidence in.
Fourth, in its totality, Bill is a forward-looking bill in at least three respects. First, the issue of datasets is not narrowly defined in law. While this has been a cause of concern for some, I believe this is the right approach to take. It allows flexibility of the term, but at the same time it subjects any interpretation to the oversight of the intelligence commissioner and the minister. It subjects the use of datasets to the internal procedures of the national security agencies themselves—and limits who may have access—and the review of the NSIRA and NSICOP.
Second, it takes steps to enhance Canada's ability to protect and defend its critical infrastructure. Increasingly, we are seeing the abilities of states and state-sponsored actors to create chaos through the attacks on electrical grids, oil and gas facilities, dams, and hospital and health care facilities. Much of this critical infrastructure is in the hands of the private sector. This bill takes steps to ensure that there is a process in place to address these threats in the future.
Third, Bill puts us on the same footing as our allies by mandating an active cyber-role for our national signals intelligence agency. I appreciate the legal and ethical challenges this raises, especially should CSE be asked to support a DND operation. However, the idea that Canada would not have this capability is, I think, unacceptable to most Canadians, and would be seen as unfortunate in the eyes of our allies, many of whom have been quietly encouraging Canada to enhance its cyber-presence in the wake of cyber-threats from North Korea, China, and Russia.
To reiterate, I believe this is a good bill, but there's room for improvement. I'm aware that some of my legal colleagues, especially Craig Forcese, Kent Roach, and Alex, of course, will be speaking to certain specific legal issues that should be addressed to make the law more operationalizable and compliant with our Constitution.
I encourage the committee to seriously consider their suggestions. However, I'm going to focus on four areas that may be problematic in a broader sense, which I believe the committee should at least be aware of or consider when it makes recommendations.
First, I think it's important to consider the role of the Minister of Public Safety. To be clear, I believe our current minister does a good job in his current position. However, the mandate of the Minister of Public Safety is already very large, and this bill would give him or her more responsibilities in terms of review and, in some cases, oversight. At some future date, the scope of this ministry may be worth considering.
Having said this, I acknowledge a paradox. Requiring the intelligence commissioner's approval for certain operations, as is clear in proposed subsections 28(1) and 28(2) of the proposed CSE Act, and potentially denying the approval of a minister is, in my view, at odds with the principle of ministerial responsibility in our Westminster system of government.
To be sure, I understand why this authority of the intelligence commissioner is there. Section 8 of the charter insists on the right to be protected from unreasonable search and seizure. The intelligence commissioner's role ensures that this standard is met.
Why is this a problem? Canada has an unfortunate history of ministers and prime ministers trying to shirk responsibility for the actions of our security services, which dates back decades. Prime Minister Pierre Trudeau used the principle of police independence to state that his government could not possibly engage in review or oversight of the activities of the RCMP even though the national security roles of the RCMP are a ministerial responsibility. There is simply a tension here with our constitutional requirements and with what has been the practice of our system for decades. If this bill is to pass through, it will be up to members of Parliament to hold the minister to account, even if he or she tries to blame the intelligence commissioner for actions not taken.
Second, despite the creation of no less than three major review agencies, there's still no formal mechanism for efficacy review of our security services. We will receive many reports as to whether or not our security services are compliant with the law, but we still will not have any idea of how well they are doing it. I'm not suggesting we need to number-crunch how many terrorism plots are disrupted. Such a crude measure would be counterproductive. However, inquiring as to whether the analysis produced supports government decisions in a timely manner is a worthwhile question to ask. Efficacy review is still a gap in our national security review architecture.
Third, while I praise the transparency of Bill , I'm also concerned about what I'm calling “report fatigue”. I note that between last year's Bill and now Bill C-59, there will have been at least 10 new reports generated, not including special reports as required. It is my understanding that some of these reports are very technical and can be automatically generated when certain tasks such as, hypothetically, the search of a dataset is done. However, others are going to be more complex. More briefings will also be required. Having spent considerable time working on reports for the government in my former work, I know how difficult and time-consuming this can be.
Finally, and related to this last point, it is my understanding that the security services will not be receiving any extra resources to comply with the reporting and briefing requirements of either Bill or Bill . This concerns me, because I believe that enhanced communication between our national security services with the government and review bodies is important. As the former's powers expand, this should be well resourced.
In summary, the ability to investigate threats to the national security of Canada is vital. I believe that for the most part, Bill takes Canada a great step towards meeting that elusive balance between liberty and security. In my view, where Bill C-59 defines powers and process, it should enable our security services to carry out their important work with confidence knowing exactly where they stand. Further, the transparency in the bill will hopefully go some way towards building trust between the Canadian public, Parliament, and our security services.
Thank you for your time. I look forward to your questions.
Thank you very much, Mr. Chair.
Good morning, committee members. Amnesty International certainly welcomes this opportunity to appear before you in the course of your review of Bill . I'd like you to know at the outset that I'm here on behalf of both the English and francophone branch of Amnesty International Canada, and thus on behalf of our 400,000 supporters across the country.
Amnesty International has a long history of frequent appearances before parliamentary committees dealing with national security matters, be that studies of proposed legislation or reviews of existing legislation. That's not because we're national security experts. Our expertise, of course, lies in human rights. Our interest in Bill , therefore, comes directly from our mandate to press governments to uphold their international human rights obligations. Documenting and responding to human rights violations arising in a national security context and pressing governments to amend national security laws, policies, and practices to conform to international human rights obligations have long featured prominently in Amnesty International's research and campaigning around the world, long predating September 11.
National security is often blatantly used as an excuse for human rights violations, clearly intended simply to punish and persecute political opponents or members of religious and ethnic minorities. National security operations have frequently proceeded with total disregard for obvious human rights consequences, leading to such serious human rights violations as torture, disappearances, and unlawful detention. Without adequate safeguards and restrictions, overly broad national security activities harm individuals and communities who pose no security threat at all. In all of these instances, the impact is frequently felt in a disproportionate and discriminatory manner by particular religious, ethnic, and racial communities, adding yet another human rights concern.
These concerns are by no means limited to other parts of the world. Over the past 15 years, Amnesty International has taken up numerous cases involving national security-related human rights violations related to the actions of Canadian law enforcement and national security agencies. These concerns have been so serious as to be the subject of two separate judicial inquiries, numerous Supreme Court and Federal Court rulings, and several significant apologies and financial settlements totalling well over $50 million to a number of Canadian citizens and other individuals whose rights were gravely violated because of the actions of Canadian agencies. I think of Maher Arar, Benamar Benatta, Abdullah Almalki, Ahmad El Maati, Muayyed Nureddin, and Omar Khadr. This is why we bring our human rights analysis to legislation such as Bill —to ensure that provisions provide the greatest possible safeguards against human rights violations of this nature.
In commenting on the bill, I will touch briefly on five areas: first, the need for a stronger human rights anchor in the bill; second, the bill's national security review provisions; third, positive changes in Bill ; fourth, concerns that remain; and fifth, issues of concern that have not been addressed in the bill.
The first area is the need for a national security approach anchored in a commitment to human rights. In the review that preceded Bill , we urged the government to use the opportunity of the present reform to adopt a clear human rights basis for Canada's national security framework. That is an approach that is not only of benefit, evidently, for human rights, but truly lays the ground for more inclusive, durable, and sustainable security as well. Currently, other than the Immigration and Refugee Protection Act, none of Canada's national security legislation specifically refers to or incorporates Canada's binding international human rights obligations.
We recommended that those laws be amended to include provisions requiring legislation to be interpreted and applied in a manner that complies with international human rights norms. That was not taken up in Bill except for one very limited reference to the convention against torture. This is important in that it sends a strong message of the centrality of human rights in Canada's approach to national security. It is also of real benefit when it comes to upholding human rights in national security-related court proceedings.
Our first recommendation, therefore, remains to amend Bill to include a provision requiring all national security-related laws to be interpreted in conformity with Canada's international human rights obligations.
Second, we strongly welcome and support the provisions in part 1 of Bill creating the national security and intelligence review agency. Amnesty International has been calling for the creation of a comprehensive and integrated review agency of this nature since the time of our submissions to the Arar inquiry in 2005. This has been one of the longest-standing and most serious gaps in Canada's national security architecture. We do have three associated recommendations.
First, in keeping with the earlier recommendation I just made, the mandate of the review agency should be amended to ensure that the activities of security and intelligence agencies will be reviewed specifically to ensure conformity to Canada's international human rights obligations.
Second, the review agency must have personnel and resources commensurate with what will be a significant workload. We endorse the recommendation made by Professor Kent Roach that the provision allowing for a chair and additional commissioners numbering between three and six is inadequate, and would suggest that the number of additional commissioners be raised to between five and eight.
Third, we continue to be concerned about the review specifically of the Canada Border Services Agency. Unlike many of the agencies that will be reviewed by the new agency, the CBSA does not have its own stand-alone independent review body. The new review agency will have the power to review CBSA's national security and intelligence-related activities, but there still is no other independent agency reviewing the entirety of CBSA's activities, despite the growing number of cases where the need for such review is urgently evident, including deaths in immigration custody. This imbalance will inevitably pose awkwardness for the review agency's review of CBSA, and it underscores how crucial it is for the government to move rapidly to institute full, independent review of CBSA.
We'd like to highlight improvements. First, our concerns about the overly broad criminal offence in Bill of advocating or promoting the commission of terrorism offences in general have been addressed by the proposed revisions to section 83.221 of the Criminal Code, which would instead criminalize the act of counselling another person to commit a terrorism offence, which was already a criminal offence essentially.
Second, the threat reduction powers in Bill , which anticipated action by CSIS that could have violated a range of human rights guaranteed under the Charter of Rights and under international law have been significantly improved. However, we think it needs to go further, and there needs to be specific prohibition of the fact that CSIS will not involve threat reduction of any kind that will violate the charter or violate international human rights obligations. We also welcome the changes made to preventive detention, but have some recommendations as to how that can be improved.
We remain concerned about the Secure Air Travel Act provisions, which we do not think address the many serious challenges that people face with the application of the no-fly list. Much more fundamental reforms are needed, including a commitment to establishing a robust redress system that will eliminate false positives, and significant enhancements to listing and appeal provisions to meet standards of fairness.
Because I know my time is limited, let me end with some provisions that remain unaddressed in the legislation.
One of the most explicit contraventions of international human rights in Canadian national security law, going back over 20 decades now, is the provision in immigration legislation allowing individuals in undefined exceptional circumstances to be deported to a country where they would face a serious risk of torture. It's a direct violation of the UN convention against torture. UN human rights bodies have repeatedly called for this to be addressed. Bill passed on the opportunity to do so. We would recommend that be taken up.
Finally, Bill also fails to make needed reforms to the approach taken to national security in immigration proceedings. There were very serious concerns about Bill 's deepening unfairness of the immigration security certificate process, for instance, withholding certain categories of evidence from special advocates.
There needs to be a significant rethinking and reconsideration of immigration security certificate proceedings, rolling back those changes that were made in Bill , and addressing still the other areas of concern with respect to the fairness of that process.
Thank you. This is an issue that I'm very passionate about. It's a great question.
One of the first examples out there is the worldwide threat assessment that's put out every year by the Office of the Director of National Intelligence. We used to call it the Clapper report. It will now be called Coats report.
What I would say is that every year they put out a 15- to 20-page threat assessment that lists what the priority threats are to Americans. It's a very useful report because it's indicative of where the security services are putting their resources and what the major concerns are. It also shows the shift over time. If you look at the reports over time, you can see that they've gone from putting al Qaeda—particularly al Qaeda in the Arabian peninsula—as the number one threat to now putting cyber as the number one threat.
It's interesting that we've seen that shift in the American national security landscape, and I think Canadians should know as well. Right now, the only way we really have of knowing these things is through the threat environment section in CSIS's annual report, but that's no longer an annual report. It now comes out every three years. Also, now it's not even really a report anymore. The last report was a YouTube video of the director sitting in front of a camera, and I don't think this is sufficient to explain what the national security threats are to Canadians.
First of all, I don't understand why that report is no longer an annual one. It absolutely should be an annual report. When I testified on Bill , I said we needed to make sure that there are annual reports discussing what these threats are, along the lines of the worldwide threat assessment. I think that would be one area.
The other area that we have is the public report on the terrorist threat, which is again supposed to come out every year. I don't believe this year's report has come out yet; I'm not entirely sure why. That is the only inter-agency report we have on any threat to Canada, not just terrorism, and it's in just one area. We don't talk a lot about espionage and we don't talk a lot about cyber, and these are things Canadians need to know.
Thank you for your question.
I will respond in English. Thank you.
I think one of the issues is that, without guidance, the security services do not know where to step. There is concern, for example, that with the broad scope of Bill , knowing where the limits were was a challenge. One of the things that the service always worries about is another commission of inquiry. This is the number one thing you want to avoid because of the drain on manpower, resources, and these kinds of things. Without adequate oversight, without clear guidance as to where the lines are, the service becomes very scared about where it can actually proceed.
We've seen that, of course. Michel Coulombe and the new director have stated that they haven't really gone for the warranted powers in Bill that allow it to violate the charter, as far as I'm aware. You want powers that are clearly defined in law and that you know have the backing of the government and the backing of the courts, or else a kind of paralysis develops, in the sense that you don't want to do anything that could eventually end up with a commission of inquiry again. This is why I strongly support clearly defined disruption powers.
I believe disruption is important. One of the things I saw during my time was just the speed at which terrorism investigations sped up. They could go from being over two years to being a couple of weeks, when people saw the propaganda and would make the decision to leave.
These disruption powers are important, but I think grounding them in the charter and in interpretations of the law is absolutely vital to the actual operations of the agency.
Wesley has pointed at me, so I will go first.
I wish to extend my sincere thanks to the committee for inviting me here to speak on Bill . It's always an honour to be asked to share my observations before this committee.
My colleague Kent Roach is appearing before you next week. He and I have divided up Bill . Today I shall be addressing the new Communications Security Establishment act and the amendments to the CSIS Act.
I support most of the changes Bill makes in these areas. I recognize the policy objectives they seek to address. I believe the statutory language is usually carefully considered and robust, but I do have one serious concern.
I'll begin with the CSE act and make my single recommendation for today. I respectfully submit that this committee should amend proposed subsections 23(3) and 23(4) to indicate CSE may not, without ministerial authorization, contravene the reasonable expectation of privacy of any Canadian or person in Canada. Those two provisions are found on page 62 of the PDF of the bill.
I have provided a brief to this committee describing the rationale for this change, and I should disclose I've been an affiant in the current constitutional lawsuit brought by the British Columbia Civil Liberties Association challenging CSE activities, but today I appear on my own behalf.
To summarize my concern, while engaged in foreign intelligence in cybersecurity activities, CSE incidentally collects information in which Canadians or persons in Canada have a reasonable expectation of privacy. This is done without advance authorization by an independent judicial officer, and thus likely violates section 8 of the charter.
Bill attempts to cure this constitutional issue through a ministerial authorization process, one that involves vetting for reasonableness by an intelligence commissioner, a retired superior court judge. This is a creative and novel solution. It preserves a considerable swath of ministerial discretion and responsibility. It is not a full warrant system. Still, given the unique nature of CSE activities, I believe it is constitutionally defensible.
The new system will only resolve the constitutional problem if it steers all collection activities implicating constitutionally protected information into the new authorization process. The problem is this. Bill 's present drafting only triggers this authorization process where an act of Parliament would otherwise be contravened. This is a constitutionally under-inclusive trigger.
Some collection of information in which a Canadian has a constitutional interest does not violate an act of Parliament, for example, some sorts of metadata. The solution is simple. Expand the trigger to read as follows: “Activities carried out by the Establishment in furtherance of the foreign intelligence” or cybersecurity “aspect of its mandate must not contravene any other act of Parliament or involve the acquisition of information in which a Canadian or person in Canada has a reasonable expectation of privacy”, unless they are authorized under one of these ministerial authorizations that are subject to vetting by the intelligence commissioner.
This may seem a lawyerly tweak, but if we fail to cure the existing problem with CSE's collection authorization process, a court may ultimately determine that CSE has been collecting massive quantities of data in violation of the Constitution. Such a finding would decimate relations with civil society actors, placing CSE squarely in the crosshairs of a renewed controversy, and making it very difficult for private sector enterprises to partner with CSE on cybersecurity without risking reputational fallout themselves. With Bill , we have a chance to minimize this kind of problem.
I turn to the CSIS Act changes. Bill does three things. First, it permits CSIS new authority to collect and potentially retain so-called datasets. Here the tension lies in balancing the operational need for CSIS to be able to query and exploit information against the privacy imperative. Rather than prescribe hard standards for what may be included in datasets, Bill C-59 opts for a system of in-advance oversight.
The intelligence commissioner is charged with approving the classes of Canadian datasets that the minister has deemed may be initially collected, and the Federal Court authorizes any subsequent retention of actual datasets. While I am wary of the idea of datasets, I cannot dispute the rationale for them and I can find no fault with the system of checks and balances. I have one concern with the retention of information that's queried in exigent circumstances. I don't know that the bill has the same checks and balances there, but I'm happy to address that further in questions.
The second change to the CSIS Act relates to revisions to CSIS's threat-reduction powers introduced in Bill in 2015. These provisions were rightly controversial. For our part, Kent Roach and I did not dispute the idea of threat reduction, but we worried that CSIS threat reduction done as a continuation of our awkward, siloed police and intelligence operations runs the risk of derailing later criminal investigations and prosecutions. This would be tragic from a security perspective.
From a rights perspective, Bill lacked nuance. It opened the door to a violation of any charter right subject to an unappealable, secret Federal Court warrant. The regime was radical, and in my view, almost certainly unconstitutional. It was, therefore, unworkable, whatever the strength of the policy objectives that propelled it.
Bill places the system on a much more credible constitutional foundation. It ratchets tighter the outer limit on CSIS threat reduction powers. By barring detention—a power I sincerely doubt the service ever wished—it eliminates concerns about the many charter violations for which detention is a necessary predicate. By legislating a closed list of activities that could be done where a warrant is authorized, Parliament tells us what charter interests are plausibly in play—essentially, free speech and mobility rights. I believe that if threat reduction is to be retained, this new system reasonably reconciles policy and constitutional issues.
Lastly, Bill 's CSIS Act changes create new immunities for CSIS officers and sources engaged in intelligence functions that may violate law during those activities. The breadth of Canada's terrorism offences makes it certain that a confidential source or undercover officer will commit a terrorism offence simply by participating with the terror group that they infiltrate. An immunity is necessary. The issue is whether there are sufficient checks and balances guarding against abuse of this immunity. Again, I think Bill C-59 does a good job of festooning the immunity provisions with such checks.
I will end, though, with a caution. Our conventional manner of siloed police and CSIS parallel investigations lags best practices in other jurisdictions that employ more blended investigations. As the Air India bombing inquiry observed, we struggle with what is known as intelligence to evidence. The government is working on this matter. We should be conscious, however, that what CSIS does in its investigations, whether in terms of immunized criminal conduct in intelligence investigations or authorized threat reduction, could derail prosecutions if not done with a close eye to downstream impacts. This issue might usefully be a topic of inquiry for the new security and intelligence committee of parliamentarians.
Thank you for your attention. I look forward to any questions.
Mr. Chair and members of the committee, I thank you for this opportunity to testify on Bill , the national security framework legislation.
I'd like to begin with a look backwards. I had the privilege 16 years ago of testifying before a House committee on the original Anti-terrorism Act. I think it might have been, in fact, in this beautiful room. One of the lessons I drew from that experience was that Parliament, if given the chance, could have a significant impact on improving draft legislation and on enabling a strong, if inevitably contentious, public debate. Given the professed openness of the to constructive suggestions, I am optimistic that a similar result will occur from deliberations on Bill .
Bill represents a very ambitious and sweeping effort to modernize the Canadian national security framework. It should not be seen as just a form of tinkering with the previous government's Bill . There are so many elements in Bill , and as you will have appreciated from testimony by my colleagues, I, like them, am going to focus on only a few elements of this.
The ones I want to focus on are what I call the key forward-looking elements of Bill . By “forward-looking” I mean the genuinely new elements in this legislation, which pose particular challenges for a committee like this in terms of trying to understand their precise potential impact and efficacy. Those three brand new elements, I think, are particularly visible in parts 1 to 3 of the legislation, so that's what I am going to concentrate on, but I'd be happy to take questions on other aspects of the bill.
Part 1 of the act creates a national security and intelligence review agency. I fully support this concept and its rationale, and it is exciting to me to see it embraced by the government. The challenge will be ensuring that the architecture can be made to work. To bring the legislation to light, it will be important to ensure that NSIRA, as I'll call it, has the right fiscal and logistic resources, a high-quality talent pool in its secretariat, excellent working relationships with the security and intelligence agencies, and a viable work plan. It will also be important to ensure that the bodies that are to be reviewed have the resources and proper approach to the enhanced scrutiny they will undergo.
NSIRA part 1 needs, in my view, a few fixes. One has to do with the mandate, in proposed section 8. I believe that the national security and intelligence activities of the RCMP should be specifically listed at proposed paragraph 8(1)(a). It is important to be clear in the legislation that NSIRA will take over some of the current review activities of the Civilian Review and Complaints Commission for the RCMP as it is doing for SIRC and for the Office of the CSE Commissioner. This should not be left simply to coordinating amendments buried in the back of the legislation.
The committee will also note that NSIRA enacts only a partial solution to the problem of dealing with national security complaints, at proposed section 16 and following. Its complaints remit is restricted to CSIS, CSE, and complaints regarding the RCMP that have a nexus in national security, and I would urge the committee to hear from the commissioner of the Civilian Review and Complaints Commission for the RCMP about how well they think the legislation enables the NSIRA complaints mandate when it comes to the RCMP.
Finally, there's an important issue of membership, as you've already heard, in NSIRA. This is at proposed section 4 of the bill. The procedures proposed are, disappointingly to me, an automatic carry-over from SIRC, but SIRC membership has had a sometimes deeply troubled history. Membership size and profile need, I think, to be rethought. In my view, the SIRC membership should be enlarged to allow for more diverse and expert representation and to reduce the burdens on members hearing complaints.
NSIRA membership should also reflect, in my view, a wider range of expertise in security and intelligence issues, including expertise in security threats, on intelligence practices, on international relations, on governance and decision-making, on civil liberties, on community impacts, and on privacy. Those are seven sets of expertise right there.
The ability of NSIRA to get up and running once legislation is passed will be vitally dependent on the continued strength, capacity, and forward planning of the Security Intelligence Review Committee, which will be NSIRA's core. It would be very unfortunate if anything occurred to weaken SIRC in the transition.
Part 2 of the bill is on the intelligence commissioner. Legislation to establish an intelligence commissioner to engage in proactive oversight of aspects of the work of CSE and CSIS is a novel concept that has no counterpart that I'm aware of among our Five Eyes partners. We are being truly innovative here. The concept that's been adopted, I believe, is a made-in-Canada solution to ensuring the legality and charter compliance of some of the most sensitive and important operations conducted by our main intelligence collection agencies, CSE and CSIS.
With regard to the function of the intelligence commissioner, I would like to offer two thoughts and one recommendation.
One thought is that it would be important that the system is and is seen to be a way of ultimately strengthening rather than diluting ministerial accountability, even while it gives some oversight powers to the intelligence commissioner. The second thought is that the ability of the minister to retain traditional powers of accountability while ceding some decision-making authority to the intelligence commissioner is linked in turn to the working of new reporting mechanisms proposed in part 1 of the act.
NSIRA will produce a much stronger stream of reporting to the minister on the activities of the key intelligence agencies, which, if that stream of reporting can be properly digested by the minister and his office, should ensure that the minister can issue authorizations that will pass muster with the intelligence commissioner. In this way part 1 and part 2 of Bill are intimately linked.
The recommendation I have to offer is that the intelligence commissioner function must not go dark. The Office of the CSE Commissioner, on which the function will partly be based, produced an annual report to the minister that was tabled in Parliament. This has been the practice since the commissioner's office was established in 1996. There is no such requirement at present for the intelligence commissioner. I believe the intelligence commissioner should be required to table an annual report that would review the commissioner's activities and findings.
Then there is part 3, the CSE act. I fully support the importance of creating separate, modernized legislation for CSE, distinct from the National Defence Act. CSE is one of Canada's most important, if not the most important, intelligence collection agency. It provides our principal contribution to the Five Eyes intelligence partnership. Getting the CSE act right is vital to Canada's interests and deserves close attention by the committee.
CSE received its first enabling legislation with the passage of the Anti-terrorism Act back in 2001. It is that legislation that is being modernized with Bill . There were no changes to CSE legislation proposed in the previous Bill .
The CSE act expands the current three-part mandate of CSE by adding two additional powers for what are called active cyber-operations and defensive cyber-operations. Let there be no mistaking that these are major new powers for CSE.
Both kinds of operations require ministerial authorization. Active cyber-operations engaging overseas targets require the consent of the Minister of Foreign Affairs. There have been some concerns raised in Parliament about the need for such consent. I think it is absolutely essential, given the volatile nature of such operations and their potential for blowback against Canadian international interests.
Active cyber-operations are what I call a digital form of covert operations, somewhat akin to classical Cold War covert operations designed to destabilize the capacities of a foreign adversary. In addition to blowback effects, they can also engage an escalatory spiral, as we saw, for example, in the aftermath of the cyber-operation known as Stuxnet, which targeted the Iranian centrifuge cascade that was central to their uranium enrichment program and nuclear weapons development. Active cyber-operations require high degrees of intelligence knowledge and technical skills, but they also require high degrees of political oversight and strong agency command and control.
It is also important to understand that many, if not all, of the operations that CSE might conduct in the future under its active cyber-operations mandate will be mounted within a Five Eyes context. I don’t think we’re going to be going it alone on these ones. This is all the more reason for there to be what has been called “a dual-key approach”. Neither active nor defensive cyber-operations require the consent of the intelligence commissioner, which is something the committee might want to look into, but such operations will be subject to review by the new national security and intelligence review agency.
The CSE act is a very complex piece of legislation. It might be a lawyer's dream, but it would be a layman's nightmare to read. It contains some very important provisions that are sprinkled throughout the bill with little connecting narrative thread. My recommendation with regard to part 3 is that there should be a values principle built into the legislation, perhaps at the proposed mandate section, to draw together some of these different component parts, and I will provide a brief on that.
I was going to add a brief set of remarks about what isn’t in the legislation, but I’m happy to address that in questions.