JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 23, 2001

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call the thirty-first meeting of the Standing Committee on Justice and Human Rights to order, and I refer our guests to the monitors outside.

This afternoon we are considering Bill C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime Act, and other acts, and to enact measures respecting the registration of charities in order to combat terrorism.

This afternoon we have as witnesses the Honourable Art Eggleton, Minister of National Defence, and Keith Coulter, who is with the Communications Security Establishment.

Gentlemen, I don't know if you've appeared before the justice committee before, but you haven't in my time, so we would ask you to keep opening statements to around 10 minutes. That will give us lots of opportunity for discussion.

Mr. Eggleton.

Hon. Art Eggleton (Minister of National Defence): Thank you very much, Mr. Chairman and members of committee, for this opportunity to comment on the implications of Bill C-36 as it relates to the defence portfolio.

You've mentioned Mr. Keith Coulter, the chief for the CSE. I'd also like to introduce Colonel McAlea. He's a lawyer in uniform, here in regard to legal advice

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[Translation]

I would like to begin by saying that the Canadian Forces and the Department of National Defence are playing a very important role in the campaign against terrorism.

[English]

Just last week, in fact, I travelled to Halifax to say farewell to the men and women of the Canadian Forces who will be joining the military coalition. And later this week I'll be in Esquimalt to do the same on the west coast with the crew of the HMCS Vancouver.

I'm proud of all members of the Canadian Forces, Mr. Chairman, and as always, in the weeks and months ahead they will serve, I believe, as an inspiration to all of us. But as we all know, the campaign against terrorism is multi-dimensional, one that involves a large number of departments and agencies across the federal government. So while the military is certainly playing an important role, the diplomatic, financial, legal, and intelligence aspects of this campaign are just as crucial. That's why today I'd like to review with you the impact Bill C-36 will have on the National Defence Act.

First, it will amend the act to align it with other pieces of legislation changed in the bill. Second, it will provide additional authorities for the Communication Security Establishment to collect foreign intelligence and to protect the government's computer systems and networks. I'll look at each of these in turn.

The anti-terrorism legislation before you will amend the National Defence Act to bring it into line with changes in the Criminal Code, the Canada Evidence Act, and the Security of Information Act that the justice minister has already outlined to you. The military justice system will be given the tools necessary to deal with terrorism offences in line with the civilian system. For example, the act will now incorporate the definitions of terrorist offence, terrorist activity and terrorist group, and court martials will be given the authority to impose more severe punishment in certain cases where an offender has been involved in a terrorist activity and to delay parole where an offender is convicted of a terrorist act. In essence, these changes will ensure that there's no discrepancy between the civil judicial system and the military judicial system. They are two separate systems, but ones we want to make sure are on an equal basis in respect of fighting terrorism. So that's the first aspect.

The second aspect of Bill C-36 that affects the defence portfolio involves the Communication Security Establishment. As part of the government's security and intelligence infrastructure, CSE's mandate is threefold. It is charged with acquiring and providing foreign intelligence; providing advice, guidance, and services to help ensure the protection of Government of Canada electronic information and information infrastructure; and providing technical and operational assistance to federal law enforcement and security agencies. Those are the three purposes. That's its mandate. And in fulfilling this mandate, I would suggest to you, it has served Canada and Canadians well.

For close to 60 years now CSE has quietly protected Canada and its interests. But as we all know, the world is changing, very dramatically as of September 11, and so must CSE change. That's why the proposed amendments to the National Defence Act are so important. They will remove significant barriers and enhance CSE's capabilities in foreign intelligence and protection of government systems.

First, let me explain what we mean by foreign intelligence. CSE gathers foreign intelligence by targeting foreign entities abroad. Let me emphasize that: they target foreign entities abroad. These may be individuals, they may be organizations, they may be states, but they are not Canadians. CSE does not direct its collection against anyone in Canada, nor does it target Canadians abroad. The foreign intelligence CSE does produce is used by senior officials of the government, it helps the government in decision-making and policy development, it informs their decisions, it contributes to the development of foreign policy, and it helps to protect the security of our country and its citizens.

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Producing the intelligence the government needs has become increasingly difficult over the past decade, because advances in technology have radically changed the world of communications. Priorities have changed as well. During the Cold War CSE focused on the Soviet Union. As the Cold War ended, the government required intelligence on a broader range of issues and foreign communications targets. There was still a lot of insecurity and danger throughout the world that had to be monitored.

Today, particularly in the wake of the events of September 11, CSE needs to further sharpen its focus on critical transnational issues, most importantly terrorism. At the same time, it needs to acquire an expert understanding of the global communications network, so that it can identify and collect communications that will provide government with the intelligence it needs. CSE's current legal framework hampers its ability to meet these new requirements. Under the Criminal Code CSE cannot collect communications that include any communications that originate in or terminate in Canada. This seriously limits CSE's ability to provide intelligence on issues that are critical to Canada's national security.

Let me illustrate what I mean. CSE focuses its collection only on foreign entities located outside Canada. This is about the third time I've said that, but I want to emphasize it. If such a target communicates with someone who is located in Canada, CSE cannot intercept the communication, as things presently stand, which means CSE stands to lose the communications of its targets at exactly the moment when they might have the most direct impact on Canada's interests, when they are communicating with someone in Canada. This constraint creates a serious gap in Canada's intelligence capabilities, which in turn affects our ability to collaborate effectively with our allies on intelligence issues.

Our key foreign intelligence partners are the United States, the United Kingdom, Australia, and New Zealand, and they already have legal frameworks in place to allow them to collect this kind of intelligence. They already have what I'm coming to ask you for today. If we are to make a meaningful contribution to the international campaign against terrorism, we must ensure that our own legal framework is aligned with theirs. They are our partners. I can tell you these measures will be welcomed by those countries, which will see them as evidence of our commitment to our close intelligence partnership.

What will the impact of the proposed amendments be on the National Defence Act? Under CSE's present legal framework, if a terrorist in Afghanistan is communicating with an individual in Toronto, CSE is not allowed to acquire that communication. With this amendment, important information that is now lost will become available to Canada and available to our allies in the fight against terrorism. When CSE has identified the communications of a foreign target abroad, it'll be able to follow those communications wherever they go.

[Translation]

I would like, however, to point out that the proposed amendments would not enable the Communications Security Establishment to focus its data collection efforts on Canadians.

[English]

As I mentioned earlier, another key aspect of CSE's mandate is protecting the government's electronic information infrastructure. Monitoring systems and networks is an indispensable tool in assessing the vulnerabilities of networks. We have to be able to get in. If there's a virus or something coming that could be of some damage, there's some mischief, some hacking, we have to be able to protect our systems, and that's the other part of what I'm asking for today. Under its current legal framework CSE is restricted in its ability to monitor the technical data on government computer systems and networks that communicate with Canadians. The proposed amendments would authorize CSE to perform more effective monitoring of our computer systems and network. This role will become even more critical as the government moves closer to making its services available on the Internet through the Government On-Line initiative.

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Let me now turn to an issue that is of great importance to the government, the right to privacy for all Canadians. I want to assure this committee, Mr. Chairman, that CSE already operates under a very effective control regime that protects the rights of Canadians. For instance, officials from the Department of Justice examine CSE's planned operations in advance of their implementation to ensure that they are lawful.

Second, the government appointed Mr. Claude Bisson, a former chief justice of the Quebec Court of Appeal, as CSE commissioner. His mandate is to review CSE's activities to determine whether they are in compliance with the law. In the five annual reports he has delivered so far in this position the commissioner has found that CSE's operations fully comply with the laws of Canada.

Third, CSE is also subject to review by the Privacy Commissioner, who actually carried out an audit in 1996 and found it to be in total conformity with the Privacy Act, as is also required if we are to follow the laws of Canada.

I want to point out that CSE has had an unblemished and publicly available record of compliance with such controls, and that isn't going to change. In fact, the safeguards applied to CSE's operations to protect the privacy of Canadians would be strengthend even further under this new legislation. As Minister of National Defence, before authorizing CSE to collect foreign communications that originate or terminate in Canada, I would have to be satisfied on four counts: first, that Canadians and persons in Canada would not be targeted; second, that the intelligence resulting from this collection could not be reasonably obtained by other means; third, that the expected value of the intelligence would justify the interception; fourth, that communications would only be used or retained when it was essential to the advancement of international affairs, defence, or security of Canadians.

Equally stringent rules would apply to CSE in monitoring government networks, the other part of this. This would ensure that we continue to protect the privacy of Canadians whose communications are carried on those networks. Prior to issuing an authorization for these purposes, I would have to be satisfied that the interception is necessary to identify, isolate, or prevent harm to the government's computer systems or networks; that the information could not be reasonably obtained by other means; that the consent of persons whose private communications may be intercepted could not be reasonably obtained; that satisfactory measures are in place to ensure that only information essential to identifying, isolating, or preventing harm to the government's computer systems or networks will be used or retained; and that satisfactory measures are in place to protect the privacy of Canadians in the use or retention of that information.

Finally, the CSE commissioner's own mandate is being strengthened in this legislation. Over and above his mandate to review CSE's activities for lawfulness, he will also review activities carried out under ministerial authorization to ensure that they are in fact authorized, and he will report annually to me on the review.

Mr. Chairman and members of the committee, good intelligence is one of the most important contributions Canada can make to the campaign against terrorism that we are waging alongside our allies, and that point has been made abundantly clear since September 11. This intelligence is a key part of that campaign. It will help also to protect our troops in the field and our citizens at home. Bill C-36 will enhance Canada's foreign intelligence capacity by removing a barrier that prevents CSE from intercepting communications that may have a direct bearing on terrorist operations. This change will bring CSE's authorities into line with those of our allies, as I've pointed out, and assure them of our commitment to remaining an active and contributing member of our intelligence partnership.

[Translation]

At the same time this bill will enable us to protect our systems and our information networks more effectively.

[English]

Let me just say in closing that the Canadian Forces, the Department of National Defence, and the Communications Security Establishment have a significant role to play in the campaign against terrorism, along with other government departments, along with government agencies, as well as our allies. This is a collective effort, Mr. Chairman, and we need to be equipped to participate in a meaningful way. I believe the additional authorities provided to the CSE and the changes to the National Defence Act that I mentioned earlier will enable us to do just that. I strongly recommend, therefore, that they be supported.

Thank you.

[Translation]

Thank you very much.

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[English]

The Chair: Thank you very much.

I go now to Mr. Benoit for seven minutes.

Mr. Leon Benoit (Lakeland, Canadian Alliance): Thank you very much, Mr. Chair.

You know, Mr. Minister, we have to stop meeting like this, or people are going to start talking. It's been four times in the last couple of weeks, but it is good to see you again. We're here dealing with a very serious subject today. We know the important role of intelligence, and I'd say the much more apparent importance of the role of intelligence. We're talking about military intelligence here today.

I'd like to ask you, Mr. Minister, to clarify something. The role of the Communications Security Establishment is primarily to collect intelligence from outside Canada against non-citizens, but I think you said this change to the current law would allow you to follow through on communications, even if the information is about a Canadian citizen. Is that correct, and is that the change you feel is quite important?

Mr. Art Eggleton: No, not quite. We still would have as our mandate targeting of foreign intelligence abroad. If, let's say, in two countries in Asia or the Middle East there are two terrorists talking with each by telephone and we pick up that signal, we can do that now, we've been doing it for 60 years. But if one of those terrorists came to Canada and continued the communication with the one who was over in the Middle East, then we couldn't pick it up, we'd lose the trail immediately. They could be over there talking about something they might want to do in Canada that is a detriment to our safety and security. One of them comes to Canada, and because they're in Canada, until this amendment, we can't pick up that very valuable intelligence information for the security of Canadians.

Mr. Leon Benoit: If one of the people taking part in that telephone conversation were a Canadian citizen, could you follow through on the intelligence in that case and use that intelligence? So that's the major change here, or part of it?

Mr. Art Eggleton: The major change is that we can pick up a signal that either starts or ends in Canada, but the targeting still has to be against the foreign entity, not against the Canadian entity. We could still pick up that information and use it to help in meeting our security needs, but it must be targeted against the foreign entity abroad, not against the Canadian.

Mr. Leon Benoit: The point is that you could still use it if you follow through on a conversation.

Mr. Art Eggleton: We can still use it. We could use it under the amendment, we couldn't use it before now.

Mr. Leon Benoit: Right, good.

Could you target someone with landed status in Canada or someone who has claimed refugee status, for example, but has no official status yet?

Mr. Art Eggleton: No. A Canadian for the purposes of definition in this act is either a Canadian citizen or a person with landed status.

Mr. Leon Benoit: But what about a refugee claimant with no status? It would allow you to target those people, is that correct?

Mr. Art Eggleton: I believe they would not be covered by the definition. I should ask the lawyer on this. Do you want to answer?

Colonel Dominic McAlea (Deputy Legal Advisor and General Counsel, National Defence and Canadian Forces): We could not target any person in Canada. Under the current regime we cannot target any person in Canada. Under the new regime we cannot target any person in Canada.

Mr. Leon Benoit: You can't target any person in Canada, even if that person has no status in the country and is suspected of being involved in terrorism?

Mr. Keith Coulter (Chief, Communications Security Establishment): We're not the only organization in the federal government, so there may be other ways to do this. What we are asking for in the legislation is the authority to follow the communication, as we're totally focused on a legitimate foreign target, into Canada, or if it comes out of Canada and we're focused on, say, a terrorist group abroad, to get at that communication.

Mr. Leon Benoit: So now, even though you're not targeting a Canadian or targeting someone in Canada to start with, you can follow through in either case. I appreciate that clarification. I think that's an extremely important distinction.

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Mr. Art Eggleton: You asked about what a Canadian means. If you look at Part V.1 of Bill C-36, you'll see in proposed section 273.61 that Canadian means:

a Canadian citizen or a permanent resident, within the meaning of subsection 2(1) of the Immigration Act

and also

a corporation incorporated under an Act of Parliament or of the legislature of a province.

So that's what we mean by Canadian.

Mr. Leon Benoit: Thank you.

If I could just follow on, you mentioned that an important part of the role of the CSE is to share intelligence with other intelligence agencies, including CSIS, including agencies from other countries, the United States, I assume, and the U.K., other NATO allies, and others. This I would assume is an important part of what the CSE does.

I would like to ask whether any of the funding, $37 million, compared to just $10 million new funding for CSIS, will be used to hire front-line people to help collect the information and to analyse. How much of a focus is there on analysing the information once its collected, or is that left to CSIS or foreign intelligence, primarily in the United States or the United Kingdom?

Mr. Art Eggleton: Yes, CSE works in cooperation with CSIS. We do share information with them and with other components of the government intelligence system and other countries. They are quite vital, because we get a lot of information from them. The United States, the United Kingdom, Australia, and New Zealand provide a wealth of information for us. We provide our share of information for them. So it's a sharing arrangement, it works on a cooperative basis. You may ask why those countries? It actually goes back to World War II. It was formed at that period of time, and it's been kept going every since.

The $37 million is a one time only amount intended for an infrastructure upgrade. It's intended for equipment, not for people.

Mr. Leon Benoit: No front-line people?

Mr. Art Eggleton: No.

Mr. Leon Benoit: Do you think you need more front-line people?

Mr. Art Eggleton: We are examining that as we go, and if we do need them, we will ask for additional people so we can do the job. We want to pull our weight, do our share, do what's important for the safety and security of Canadians, but also do our share within our partnership with the other countries.

We do analysis by the way. It's a very key part.

The Chair: Thank you very much, Mr. Benoit, Mr. Minister.

Madame Venne, seven minutes.

[Translation]

Ms. Pierrette Venne (Saint-Bruno—Saint-Hubert, BQ): Thank you, Mr. Chairman.

To continue along the same line, I would like to ask you why, with the proposed amendment, you will circumvent the court, since you no longer have to go to the court to seek permission to proceed with electronic monitoring. Even if you can only do this in Canada in a very roundabout way, even though you're saying that it is not directed at Canada, this is nevertheless what is going to happen. You're circumventing the court by doing this. Why does the court bother you so much? Now, it will all be left up to you.

[English]

Mr. Art Eggleton: We couldn't go to the court. The court has no authority, because it's foreign intelligence that we're targeting, and it has no authority outside Canada.

[Translation]

Ms. Pierrette Venne: No, clause 273.65 talks about the interception of private communications. This is how clause 273.61 defines private communications in Part V.1:

“private communication” has the same meaning as in section 183 of the Criminal Code.

Private communications are therefore communications between Canadian citizens or between Canadian citizens and individuals outside the country. This is what the legislation says now.

Previously, in order to monitor private communications in this manner, you had to ask the court for a permission. The way that it is presented to us today, you no longer have to do this, and I am asking you why.

[English]

Mr. Art Eggleton: We've never gone to the court. We do not go to the court for targeting foreign entities. We have never gone to the court with respect to foreign entities, and we would not be going to the court now. There is an amendment to the Criminal Code this bill brings about that provides for us to be able to have the beginning of a communication in Canada or the termination of a communication in Canada as part of the jurisdiction for CSE. That's the change, but it does not change the core direction and mandate of this organization, which is to target foreign entities abroad, and in that case, Canadian courts have no jurisdiction.

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[Translation]

Ms. Pierrette Venne: I am saying that in order to intercept private communications right now, you have to apply to the court. We are not listening to what we both have to say. I am explaining what we have to do right now when we want to intercept private communications: we must submit an application to the court. Under the proposed amendment, we will no longer need to apply to the court. This is what I'm explaining to you, but don't give me another answer because we are both talking and not being heard.

I would, therefore, like to deal with another aspect of this issue. With these clauses, we are codifying the Communications Security Establishment for the first time. Previously, there was no clear legislative basis for this establishment. We are now, therefore, establishing its mandate. I would like to know when it was decided to establish or come up with this legislative basis. How long has this been in the wind? Or did you suddenly come up with the idea in conjunction with the antiterrorist act?

[English]

Mr. Art Eggleton: It is a gap that has existed for some period of time, but there's no doubt that the events of September 11 are very much a factor in all of this, because the safety and security of Canadians have become a much greater preoccupation than ever before. As a result of September 11, we have been reviewing our laws, our practices, our policies, and our programs to see how we can improve the safety and security of Canadians. This fits well in it. As I pointed out, when you have terrorists communicating completely overseas, we have no problem, but if one of them comes to Canada and communicates in a way that could be very detrimental to the safety and security of Canadians, we have not been able to intercept that communication. This change provides us with the opportunity to do that.

You've again mentioned the court case. The only circumstances that have involved seeking court warrants have been in reference to CSIS, when under section 16 it is required to do that. CSE, though, is a communications signals entity that targets foreign, offshore entities, and therefore is in a different category from the kind of warrants you perhaps are familiar with CSIS obtaining.

[Translation]

Ms. Pierrette Venne: This provision did not exist before; it is new. Clause 273.65 is new. These are new powers that didn't exist before.

You did not tell me when the drafting of these amendments first began, not to the law since it didn't exist, but the amendments pertaining to the Communications Security Establishment, which is now referred to in legislation and which is now codified. One day we will find out when you began to dream this up, but was it since September 11? This is what I was asking you.

To conclude, I will ask you another question. Given the magnitude of the powers contained in this legislation, do you not think there should be a sunset clause?

[English]

Mr. Art Eggleton: Let me answer the second question first, and then I'll ask Mr. Coulter to tell you about some of the history behind the thinking towards this amendment.

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A sunset clause on this particular part of the legislation is all that I'll comment on, as more on this particular part of the legislation would be inappropriate. This is something that is needed on an ongoing basis. It's something that our allies already have. Indeed, if we talked about a sunset clause, from what I've beem hearing, in a three-year timeframe, the second part of this legislative permission that we're seeking would go out of existence at the very time it would be most needed. That is the protection of our government computer and networks, because in about three years we'd be bringing Government On-Line into existence. That's not the time to shut down this provision, when we're just getting into a circumstance where we need it the most.

So on this particular aspect of this bill—I'm not going to comment on other aspects, it's up to the Attorney General to do that—a sunset clause would not be appropriate. I'll ask Mr. Coulter to answer the other question.

Mr. Keith Coulter: With respect to the issue of how this legislation initiative came about, September 11 was a very huge day for CSE. We immediately knew that we needed to focus on one category of activity, we needed to help contribute to the Government of Canada's understanding of what had happened and what needed to be done. We work with partner agencies, and we very quickly knew that we needed to address this shortcoming, what we saw as a gap in our capabilities, and it was an area that our partners could work in, namely, the link of a communication back to the country of the agency. So we came forward to the minister, as we needed it to be in this piece of legislation in order to get this kind of authority—there was no other way to get it. So that's why we came forward following September 11.

[Translation]

Ms. Pierrette Venne: You have exorbitant powers. There must be a time limit put on exorbitant powers.

[English]

The Chair: Mrs. Wayne, seven minutes.

Mrs. Elsie Wayne (Saint John, PC/DR): Thank you very much, Mr. Chair.

I think the most important thing here, Mr. Chair, is that regardless of which side of the House we sit on, we make sure that our military and all those who are involved have the resources they require to make sure Canada is safe and secure. That is what we want, that is how we must all work together to make sure that happens, because I have to say, if not, then we can be in deep trouble.

Groups within Canada, Mr. Chair, as well as terrorists outside the country, can seriously damage Canada's critical infrastructure through cyber-attacks. Given the limited resources available, I ask the minister, would it be better to concentrate on improving protection of computer systems against cyber-attacks, rather than increasing the capacity for intelligence gathering and analysis?

Mr. Art Eggleton: The two of them go hand-in-hand. The possibility of a cyber-attack coming from a terrorist entity is very real. We have had virus incidents already, basically from offshore locations. With an improvement such as we're suggesting here in our ability to gather intelligence—and hopefully, we'll have intelligence that'll help us deal with that—the more intelligence we can gather about possible attacks and security problems, the better placed we will be to protect Canadians from those kinds of attacks.

Mrs. Elsie Wayne: The other thing I would like to know, Mr. Chair, is this. You were referring to whether or not you would be able to monitor more effectively Canada itself. In 1999 CSIS knew we had 350 of these people in Canada—they were aware of them at that time—who really were a major concern. Are we working very closely with CSIS in this regard to make sure that those who are in Canada at present are being monitored, those who can cause problems like what happened in New York City? I know you have to be very careful, you can't tell us everything, but we want to make sure that our safety here in Canada is being protected and that you people are in a position to monitor and look after it.

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Mr. Art Eggleton: We do work very closely with CSIS, and the efforts of CSE are, of course, to provide information that helps in the protection of Canadians.

I'll ask Mr. Coulter to further elaborate on that.

Mr. Keith Coulter: First, as the minister said, we contribute foreign intelligence that helps other partners here in Canada understand what we're dealing with.

The second part of the answer is that in terms of our mandate as outlined in the legislation, they're beyond the foreign intelligence and information technology security component. There's a third component, which is to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties. So yes, we provide technical and operational support to those agencies.

We work very closely, and I think the future is to be working even more closely. In fact, since September 11 I think we've got a lot closer to CSIS, and we'll continue to develop that partnership, so that we can both do our parts as efficiently and effectively as possible.

Mrs. Elsie Wayne: As I come from a city that does have a nuclear power station, it is of major concern. The largest privately owned oil refinery in Canada is there as well. And as this is the closest city to the U.S. border in our part of Canada, all security is very important to me and to our people back home.

There is a lot of information that is still available on the Internet, and since many types of information can be used by terrorists planning attacks, will we witness a dramatic reduction in the amount of military, government, and other information on the Internet, or are the concerns about the information available to terrorists exaggerated, if we go in this direction?

Mr. Keith Coulter: I'm not sure. We're working our way through this step by step. Our focus right now is on a couple of areas to do with indications and warning of any future attacks. We want to understand the networks that are out there working against the interests of the Government of Canada and Canadians, and we're going through it step by step. I think the issues you're raising are very serious and have to be addressed, but it's not an area my organization right now has the ability or the capacity to focus on, because we're flat out on the first couple of things I mentioned.

Mr. Art Eggleton: I might add that we do have the Office of Critical Infrastructure Protection and Emergency Preparedness, which focuses on the kinds of vital infrastructure you've talked about and are concerned about back in your home area.

We do have a list of many of these things. We are talking with the provinces and municipalities and the owners about what they can do to better protect their various facilities that are of vital importance to the infrastructure of this country, to the economy of this country, to the social well-being of this country. At the same time, the Nuclear Safety Commission also, of course, deals with the question of the plants of nuclear capability that exist in this country.

The Chair: Thank you very much, Mr. Minister and Ms. Wayne.

Lynn Myers, for seven minutes.

Mr. Lynn Myers (Waterloo—Wellington, Lib.): Thank you, Mr. Chairman.

I first want to thank the minister and the two individuals here appearing for the testimony they're giving. I think it's very important, and I think it underscores the commitment of the Government of Canada in moving in this very important area.

I was heartened, Mr. Minister, by the fact that you said the CSE was in full compliance with the Privacy Act. I guess I wanted to fully have the assurance that what's being proposed, the new powers, as well as the amendments, will in fact meet that test as well.

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I also wanted to get a sense—and perhaps this would have helped Madame Venne a little in respect of the judicial warrant issue—of how Canada will be perceived in its intelligence gathering and what role we'll play, not in detail, because I think you mentioned, Mr. Minister, the fact that we'll now be in concert with our American partners and the Australians and people in New Zealand, as well as the United Kingdom. I wanted a sense of Canada's role in that and where we're heading.

After that I have two more quick questions.

Mr. Art Eggleton: The first question I'll answer, and then I'll ask Mr. Coulter to answer concerning the partners and how they perceive us. In fact, he has regular communications with them.

With respect to the Privacy Act, we abide by it now, we will abide by it after these amendments. And it's not only the Privacy Act, we comply with all other laws, the Criminal Code of Canada, of course, the Charter of Rights and Freedoms, and all other acts that require a lawful existence. That's exactly what we will comply with.

As I've pointed out, even before an operation starts, there is advice given by the Department of Justice legal advisers. There is the CSE commissioner, who monitors to ensure that it is all lawful. And there is also every opportunity, an opportunity that is taken up, for the Auditor General, the Privacy Commissioner, the the Information Commissioner. They all have a right to go in and audit. They all have a right to go in and inspect. The one case where I do know the Privacy Commissioner went in, he found that the Privacy Act was being followed. So yes, we follow the laws of Canada.

Mr. Keith Coulter: We work very closely, as the minister mentioned earlier. We have some very close partners in the foreign intelligence world, the United States, the U.K., Australia, and New Zealand. We've been working with them very closely. Just last Thursday and Friday, for example, I was in the United States, at the National Security Agency, talking through with them our thoughts on strategic approaches for the longer haul, working very closely with them in developing concepts and approaches. I mentioned earlier our partnership with CSIS here in Ottawa. There are other partners here in Ottawa, and there are the partners abroad.

We're perceived, I think, as a very professional organization. We have a long history of association with these partnership agencies, and we've been perceived very well, we're highly regarded. But the future's ahead of us, and one of the things I was able to explain when I was in the United States late last week was the details of the legislation that has been tabled and is being proposed. It was extremely well received south of the border. In fact, they look at it as a signal of our seriousness, and from their perspective, it signals an understanding of what we're dealing with, what we need, the kinds of tools we need to go ahead and get at this very serious problem.

Mr. Lynn Myers: I think, Mr. Chairman, it's fair to say that's very reassuring.

Moving to the commissioner, however, there has been criticism. How can he, for example, be objective, in light of the fact that he reports to you on you, in effect? I wonder if you could answer that criticism.

Second, I know it came up in the House of Commons today during question period that Monsieur Bisson had said the powers that were to be granted were exorbitant—I think that was the term. I wondered if you could comment on that, because I think we need to clear the record here.

Mr. Art Eggleton: With respect to the first question about the CSE commissioner reporting to me, yes, I am responsible for the Communications Security Establishment, I'm accountable to Parliament for it, and he does submit a report to me annually on his findings, and I table that report in both houses of Parliament. So it's a public document. This is, in fact, the last annual report right here.

He isn't reporting on me, he's reporting to me. He's reporting on his review of the activities of the CSE, seeing that they comply with the law and with the terms of any authorization that is given by me as the minister. He hasn't to this point found anything outside the law, but if he did, he would not only have to report to me as he usually does, but he'd have to report to the Attorney General as well, who has the obligation to deal with anything that could be outside the law. But that has not been the case. In the five annual reports he's submitted he finds the CSE's activities to be completely within the law.

• 1620

On this question of his using the word “exorbitant”, he himself explained in the same article that he meant by that, and I quote, “out of the ordinary”, but not “excessive”. I'd agree, this is out of the ordinary, this is not the way we've proceeded up to now. This is a new piece of legislation. But he says it's not excessive, and of course, I totally agree.

He does agree, Mr. Chairman, with this amendment in Bill C-36 with respect to the Communications Security Establishment and his role. I have it in writing, and I'm happy to table it with the committee. He approves and supports what I'm asking for here today.

Mr. Lynn Myers: Mr. Chairman, can we ask that it be tabled?

The Chair: We'll do that, Mr. Myers. Thank you for bringing that to my attention. If you would provide the committee with a copy of the letter you referred to, Mr. Minister, we would appreciate that.

Now, we'll go to Mr. Sorenson, who has three minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, Mr. Chairman.

I too want to thank you for coming to committee today. Mr. Minister, I want to commend you. You made the right choice in deploying our military and making a stand like that. We certainly want to be sure that our military is adequately equipped, sufficiently funded, and properly resourced, and our party has called for that for many years.

I have a number of questions, the first a very short one to Mr. Coulter. What are personnel numbers in CSE at the present time?

Mr. Keith Coulter: It's approximately 1,000 people.

Mr. Kevin Sorenson: Has that number increased or decreased over the last six years?

Mr. Keith Coulter: It's pretty steady. It's had some little ups and downs, but it—

Mr. Kevin Sorenson: What would the high have been?

Mr. Keith Coulter: I think 1,000 is as high as it's been. It's been in that range for a few years now.

Mr. Kevin Sorenson: All right.

What we are seeing here with CSE is a broadening of their powers. Certainly, extra powers are given. These are difficult and extraordinary times, so extra resources are needed. My question deals with the accountability of it. We have CSIS, which we know is accountable to SIRC, which I would say is a very non-partisan group of people from many different parties, former members of Parliament, at least one former premier. Then we look at CSE, and there are three on that committee, is that correct, with the Information Commissioner, the minister, and the judge?

Mr. Art Eggleton: It's not a committee. There is just the commissioner.

Mr. Kevin Sorenson: So it is a committee of one. Those are the best kinds of committees.

Mr. Art Eggleton: He is appointed as a commissioner. He does have staff, however, he does hire people, and he has the legal advice he needs to be able to do his work. So he has resources to do the work.

Mr. Kevin Sorenson: So the CSE is accountable to the commissioner.

Mr. Art Eggleton: No, the CSE is accountable, through the chief here, to me, and to the Privy Council in respect of policy, because policy is blended with government-wide policy in the matter of intelligence gathering. So the chief reports through the deputy clerk of the Privy Council Office in the case of policy, he reports through the deputy minister of National Defence on administration, and both streams come to me.

Mr. Lynn Myers: All right.

I have one other quick question. It's been mentioned that all the dollars that have been allocated here are not for personnel, but are rather for the technology that is needed. We already know CSIS is saying that we have a mountain of information to go through, but we don't have enough analysts to keep up. The RCMP have basically said the same thing, that the information is piling up, the personnel aren't. There's been a plea for more analysts. Now we see $37 million going to to our Communications Security Establishment, which will all be given to update our technology in gathering information, but no more personnel. My concern is that we're just heaping up this mountain of information, with not enough resources to analyse it. Could you comment, please?

• 1625

Mr. Keith Coulter: We're on two tracks here. The first track was in-year resources. We're an organization that is very technical. We have a lot of computers, we do a lot of processing and analytical work, and technology really makes a difference. So with this $37 million, we will put it to good use to update some things. If I could use a PC as an example, getting that new Pentium thing will really increase our capability without adding analysts.

We've got a longer-term issue, and we're addressing it. Already the bureaucratic processes have started to crunch numbers to see what kinds of things over the longer haul might make sense. Certainly, we'll be coming forward to the minister with proposals on that, which could involve additional people as well.

Mr. Art Eggleton: Let me add that the government has, as you know, made several announcements, including this one about the $37 million for CSE, that have come out of a package of $280 million. That's not the end of what we're going to do in the matter of safety and security provisions for Canadians, it's only the beginning. Those are the immediate programs and services that are being expanded or improved upon, and in our case, what we're talking about for CSE is the equipment they need to do the job. But as we go through our further analysis, if we do see other resource requirements that are needed, human resource requirements, then we will deal with those.

The Chair: Thank you very much, Mr. Minister.

Mr. Bryden, for three minutes.

Mr. John Bryden (Ancaster—Dundas—Flamborough—Aldershot, Lib.): The Access to Information Act seems to adequately protect the types of secrets CSE must have. But for the life of me, I can't understand the need for clauses 103 and 104 pertaining to the Privacy Act. While I acknowledge that you want to protect privacy in the spirit of the Privacy Act, why are clauses 103 and 104 necessary, creating an exclusion that is brought about by a certificate from the Attorney General of Canada?

Mr. Art Eggleton: I'm not sure what you're getting at here. I understand, though, that is in the Attorney General's area of determination. Clauses 103 and 104 don't come into my part of the legislation here.

Mr. John Bryden: Yes, but I presume it applies to you. Clauses 103 and 104 enable the Attorney General to issue a certificate that permanently and forever excludes information pertaining to the two privacy acts from oversight of any kind and disclosure. We had quite a discussion this morning on it.

Mr. Art Eggleton: I don't think it directly relates to what I'm here for today, and I don't think I could comment on it.

Mr. John Bryden: That's fine, Mr. Minister, but I would put the question to you for a later answer, because it pertains specifically to the Communications Security Establishment, a body that has to operate with a high degree of confidentiality. The question then becomes twofold. Is not the Access to Information Act as it currently exists, with the exemptions pertaining to international affairs, defence, and security, adequate protection for CSE's secrets? The second question, which we can come back to when you can find the answer, is why we need the exclusions from the two privacy acts that are outlined in clauses 103 and 104. Is this something that CSE sees as necessary in some way or another? We can defer the answer to that, Mr. Chairman, until the witnesses have an opportunity to consider it.

• 1630

Mr. Art Eggleton: The provisions apply to the government as a whole, and the Attorney General has carriage of those matters. We will comply with the Privacy Act, we will comply with the Access to Information Act, as we are required to do now.

Mr. John Bryden: The justice minister is making the argument that these exclusions have to exist in the interests of national security, as expressed in the activities of the Communications Security Establishment, the RCMP, CSIS, and others. So I'm following a theme, and I have to ask, as I did this morning of the RCMP and CSIS, why are these exclusions necessary? Why do these organizations feel they are necessary? But I'd be happy to give you time to develop a response, if that is satisfactory.

The Chair: Thank you very much, Mr. Bryden. If the panel isn't intending to answer it now, I'm sure they'll undertake to do it later.

Mr. Art Eggleton: I will get back to you later on that.

The Chair: We anticipate it.

[Translation]

Welcome, Mr. Bachand.

Mr. Claude Bachand (Saint-Jean, BQ): First of all, I would like to talk about Mr. Bisson's rather warped definition of the word "exorbitant". Mr. Minister, you said that the word "exorbitant", according to Mr. Bisson, meant "out of the ordinary". According to my information, he allegedly said "out of the norm", which is, in my opinion, very, very different. "Out of the ordinary" and "out of the norm" are two very different ideas in my opinion. I think that Canadians are asking themselves some questions about this matter today. I think that they're beginning to understand that, before the introduction of this bill, the mandate of the Communications Security Establishment was to intercept discussions that took place outside of Canada, in order to protect Canadians and Quebeckers.

They are now coming to the realization that the CSE, which received additional money last week, will now be able to intercept conversations within Canada because of this bill before us. I think that they are worried about this.

Up until now, police departments, when they have wanted to do some electronic monitoring, usually had to ask permission from a judge in order to proceed. With the new legislation, the CSE will not be asking permission from a judge, but will be going to the minister. I have a great deal of confidence in the Minister of National Defence, but I also have a lot of confidence in the judges, who are the impartial watchdogs of the laws to which we are subject. Moreover, Superior Court and Supreme Court judges are often called upon to interpret laws, but in this situation, they are intentionally being left on the sidelines. This makes people fear potential abuse.

I know that I have only three minutes, and so I will ask Mr. Coulter a question right now.

Mr. Coulter, does the Communications Security Establishment have a headquarters? Are the people who work for you all located at the same place or do they work in a decentralized fashion? As a member of Parliament who would like to know whether the additional money allocated last week is justified, I would like to visit the Communications Security Establishment. Could you make arrangements for me to visit the Communications Security Establishment, so that I can visit it and find out whether or not the taxpayers' money is being invested properly?

[English]

Mr. Art Eggleton: Mr. Coulter will answer that question, but with the preamble to the question, I'm sorry, Monsieur Bachand, that you weren't here before, because that was all extensively answered. Most of that was asked by your colleague. As for interpreting the words of Mr. Bisson, let me say clearly and unequivocally that he supports what I'm asking for today, and I filed it in writing with the committee. Going to a judge is something you don't do when you're targeting foreign intelligence abroad. It's not within the jurisdiction of a judge to provide you with that kind of warrant.

Now, Mr. Coulter, he wants to see what you do.

• 1635

Mr. Keith Coulter: I think there was one other question in there that the minister answered before in terms of the judicial warrant thing. Basically there is no other way, because no judge has the jurisdiction to approve what we're asking for here in legislation. So we have the legislation. We also have other things that are in the accountability chain. Independent review, reports tabled in Parliament, direct accountability to the minister, and other things will ensure that we're accountable for how we handle this authority.

In terms of the headquarters, it is located here in Ottawa. Almost all of our people are here in Ottawa. We have some exchange people with similar organizations in our partnership community—a few Canadians down at the National Security Agency, for example. I visited them late last week.

I'm not sure what makes sense, but I will undertake to look at what kind of program we could introduce to accommodate interested parliamentarians in terms of a briefing on our organization. There's a lot of good public information out. It doesn't get high visibility.

I'd refer you, for example, to the commissioner's annual report. He puts out in public an explanation of what we're about and how we go about our business, and I don't think it has a wide readership. Maybe with the interest in this legislation more people will read it. So that's one way. We put out a backgrounder with the legislation, I think, that explains more about what we have.

But I do undertake to think about this and come up with something that makes sense.

The Chair: Thank you very much.

It doesn't surprise me; we're visited by a member of the defence committee and we're talking about a site visit.

Some hon. members: Oh, oh.

The Chair: Mr. McKay, three minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman, and thanks to the minister and the witnesses for coming.

If September 11 stands for anything, it seems to me it stands for a blurring of the distinction between what is essentially criminal activity and warlike activity. Really, that distinction, whatever it was at one point, is now lost. It's all about security.

The first question has to do with the overall philosophy of the bill, which seems to maintain the silos of various security establishments. Mr. Elcock was here representing CSIS. Mr. Zaccardelli was here representing the RCMP. You are here representing the CSE. Nothing I see in the bill compels you to share information with other, to disclose information to each other. It's not partnerships; it's not we would like to; it's not we undertake to—it's that somebody is compelled to have, if you will, overall control of the security pulse of this country.

If we learned anything in the organized crime piece, it was that a lot of security falls between the cracks, because various police organizations, in this case, are jealously guarding jurisdictions.

One, what comfort can you provide me, and two, is this bill structurally flawed in that area?

The second question is, what is Echelon? Who is in Echelon? Is it the U.K. and U.S., or is it them, us, Australia... What does it do? And what is the impact of Bill C-36 on this arrangement in Echelon?

Mr. Art Eggleton: I'll take the last one first, because that will be the easiest. I'm going to have to, for the first time today, invoke the national security comment, which is to say I cannot comment on operations, either actual or alleged. So I can say nothing further about Echelon.

With respect to cooperation, it's right in the proposed legislation, which, by the way, for the first time puts into legislation the CSE. Up until now, it's operated on orders in council, both going back to its creation in 1946—it was used during the war as a largely military entity—and then in 1946, when it was established under the National Research Council by an order in council. In 1975 a further order in council put it under the jurisdiction of the Department of National Defence and the minister. This puts it into legislation for the first time.

• 1640

So this is not just about the amendment; it actually codifies the organization. But it does put in here, in proposed subsection 273.64(1), the following:

(b) to provide advice, guidance and services to help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada; and

(c) to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.

That actually appears twice with respect to both the foreign intelligence gathering and as well as the operations of our own computer systems. Or maybe it's just once. At any rate, it is there. It's in the law. It's part of it. It says they provide advice. They are part of not just a partnership but the government system overall. They do cooperate and they do work together.

There is a pamphlet, which is also on our website, called The Canadian Security and Intelligence Community. It's put out by the Privy Council Office of the government. It talks about the different roles of the intelligence-gathering entities within the federal government. It talks about how they are coordinated and what they do. It goes through it in some detail.

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Thank you, Minister.

Mr. Benoit.

Mr. Leon Benoit: Thank you, Mr. Chair.

It seems to me there are two very important and serious considerations when looking at this legislation. The first is proper scrutiny. That's been touched on by my colleague and by others, but I think we have to pursue that more.

The second is coordination and cooperation with the other intelligence agencies, such as CSIS, the RCMP, the immigration department, and others. That's critical. That's been touched on by one of my colleagues.

Looking at scrutiny first, CSIS has SIRC as a body to oversee the organization. Members of SIRC are appointed by cabinet, but after consultation with the Leader of the Opposition and other parties in the House. As a result, we've seen SIRC, at least to my knowledge and in my memory, have appointments that really seem to be non-partisan and overall good appointments. Why wouldn't we have that type of an oversight body for this organization?

Mr. Art Eggleton: There are different mechanisms for oversight. Having a commissioner is a well-established oversight mechanism. We don't have to have the same mechanism for each and every case. What's important is, does it work? Does it do what it's supposed to do?

As for the CSE commissioner, first of all, talk about non-partisan; remember, this man, not too long ago, retired as the Chief Justice of the Court of Appeal in Quebec. So he's outside the political framework, and a man of outstanding credentials.

As I said, he reports annually. He can also report from time to time between the annual report. His annual report even notes all of the different reports he has submitted. But this is a public document, so he is providing this information to me and to the government. It's tabled in both Houses. You can fully see that he has examined the work of CSE under the laws of Canada and says, yes, it does comply.

So I think that's the most important thing. There are different mechanisms. I think it's important that the mechanism works, and this one does work.

Mr. Leon Benoit: But, Mr. Minister, this has changed now. There's been a change here, a substantial change, where a Canadian citizen can be affected substantially by information collected. This is a serious change. Why would there be any less requirement for proper oversight than there is with CSIS when you consider this change?

So the commissioner may have been, or may not have been—it's questionable—acceptable before this change, but certainly with the change, why would we have any less scrutiny than we have with CSIS, with the body SIRC?

Mr. Art Eggleton: There is not less scrutiny, it's just a different kind of scrutiny. So I beg to differ. It's a different scrutiny, it's a different structure, but it's equally effective. He has been doing this for a number of years, and doing it quite effectively. He can determine—

• 1645

Mr. Leon Benoit: But, Mr. Minister—

Mr. Art Eggleton: —whether in fact the CSE operates within the law. He says we do operate within the law. He has the tools he needs to be able to make that examination. We also can have oversight provided by other entities.

I've mentioned the Privacy Commissioner, or the Information Commissioner, or the Auditor General. They can all provide oversight. As well, there is a justice department official who is part of a predetermination of the legality of any particular action or project that is going to be taken by CSE.

So I think the oversight exists.

Mr. Leon Benoit: Why a different level of scrutiny? And why a different type of scrutiny?

Mr. Art Eggleton: It's a different mechanism.

The Vice-Chair (Mr. Chuck Cadman): Thank you.

Mr Owen—

Mr. Art Eggleton: It says here also, under proposed subsection 273.63(5), that:

The Commissioner may engage the services of such legal counsel, technical advisors and assistants as the Commissioner considers necessary for the proper performance of his or her duties and, with the approval of the Treasury Board, may fix and pay their remuneration and expenses.

So quite clearly, his mandate is in the law. He is quite supportive of these changes, and believes he can monitor these changes very accurately. The core mandate has not changed. Yes, this is an addition to it. This is different from the way it's been in the past. But the core mandate is the target of foreign intelligence abroad, and that's what it continues to be.

The Vice-Chair (Mr. Chuck Cadman): Mr. Owen.

Mr. Stephen Owen (Vancouver Quadra, Lib.): Thank you, Minister, officials.

Let me take another cut at the issue of part VI of the Criminal Code, which is the judicial authorization for interception of communications. From Mr. Bachand's question, and Madame Venne's before that, there may not be a full understanding. I'd like to just put to you my understanding of the distinction and have you confirm if I am correct. I think it may answer the question more clearly.

The reason that part VI is put out of this bill, is made non-effective, is that a judge, as has been said, cannot authorize an interception directed at a foreign in a foreign country. A judicial authorization can't be asked for, for the Canadian half of a foreign-Canadian conversation, because being directed at the foreign part of it, you don't know that the Canadian half is involved until it's actually been made—either initiated in Canada and picked up because you've targeted a foreign phone, for instance, or initiated from the foreign phone and received in Canada. So there would be no time to get a judicial authorization, and you actually need the prior authorization simply directed abroad. That's why part VI is left out.

Is my understanding correct?

Mr. Art Eggleton: That's quite true. Sometimes we don't even know the other side of it, the receiving side or the sending side. We're targeting a certain person in some country abroad. We don't always know what the other side of it is initially. If we don't know, then under the way the law has been up to now, we can't continue with that communication, because it could be that the other part of it is in Canada. That amendment to part VI of the Criminal Code means we can now continue to target that entity even if we don't know what the other side of it is, and finding out that it is one in Canada, we're still allowed to do that.

[Translation]

The Chair: Mr. Bachand, the floor is yours.

Mr. Claude Bachand: I will keep going. First of all, I would like to know whether or not we need the approval of a judge to listen to a conversation between two foreigners outside of Canada. I do not know whether or not this is done. Could you tell me whether the CSE is mandated to listen to conversations between individuals somewhere in Europe or in the Middle East? I don't think so.

Secondly, in the case of a Canadian who is talking to somebody outside the country, you have said that the permission of a judge is not necessarily required. The minister could decide to proceed and if he sees that the conversation is of no interest, he can drop the matter without necessarily discussing it with a judge.

• 1650

I would like to know whether Bill C-36, which is currently before us, authorizes the minister to tell the CSE to listen to a telephone conversation between two Canadians, in Canada. Do you have this authorization right now? No?

[English]

Mr. Art Eggleton: I don't have that authorization right now, and I won't have it after this amendment, either.

[Translation]

Mr. Claude Bachand: Very well.

[English]

Mr. Art Eggleton: Do you want me to respond to your other questions? Okay.

This question of I don't think we need a judge... It's not a question of thinking; it's a question of what the law provides for, what the jurisdiction provides for. There is no jurisdiction for a judge to provide for a warrant with respect to information that's targeted at a foreign entity outside of the country.

With respect to intercepting communications of people abroad, that has been the work they've been doing for the last 60 years. That is a key part. They have, as I said, three mandates. One is to collect foreign intelligence, signals, communications intelligence. They have a mandate to protect our own infrastructure systems here, our computer systems and networks of the Government of Canada. Third, they provide advice and support to other entities within the federal family with respect to intelligence gathering as well.

That's what their mandate has been and that's what their mandate will continue to be. This amendment helps them to better meet their mandate.

[Translation]

Mr. Claude Bachand: Now, as far as the minister's directives are concerned, I do not know if the Chief of the Communications Security Establishment received directives from the minister, because the bill states that the minister may issue written directives to the chief respecting the carrying out of the chief's duties and functions. What does that mean? Does that mean that once the legislation is passed, the minister would be able to change the mandates somewhat without going back to Parliament?

What I've also noticed is that, under clause 273.63(6), the Governor in Council may issue directions to the commissioner. Consequently, the minister can issue directives to the chief and, as far as the commissioner is concerned, the commissioner being somewhat like the watchdog, it is the Governor in Council, namely the Cabinet that can change his mandate.

Once the bill is passed, could the minister decide to change the chief's mandate and could the Cabinet also change the commissioner's mandate without amending the legislation?

[English]

Mr. Art Eggleton: This legislation clearly says, in the foreign intelligence section of it, that:

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

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

the information to be obtained could not reasonably be obtained by other means;

the expected foreign intelligence value of the information that would be derived from the interception justifies it; and

satisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.

I have to operate within that, because that would be the law. The commissioner, who is appointed by an order in council, also has to apply the law as he is also covered in here in terms of his mandate.

The Chair: Thank you very much, Mr. Bachand.

Mr. Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): Minister, the legal authority for undertaking the military campaign now clearly resides variously in article 51 of the UN charter; the United Nations Security Council's determination that terrorist attacks were a threat to international peace and security; and article 5 of the NATO charter and the like. While there may be legal authority to undertake the military campaign, that military campaign must nonetheless comport itself, in the conduct of that campaign, under the norms of international humanitarian law—for example, with prohibitions against targeting civilians and the like.

What precautions or procedures have been taken to ensure that the Canadian Forces comply with norms of international humanitarian law in the conduct of the military campaign?

Mr. Art Eggleton: Well, it's certainly part of the instructions given by the Chief of the Defence Staff to comply with the law. Of course, he is under a responsibility to comply with Canadian laws, or the laws of armed conflict as they would apply in this case.

• 1655

Mr. Irwin Cotler: The reason for my question, Minister, is that during the Kosovo campaign, questions were raised as to whether in fact the conduct of that campaign was in compliance with norms of international humanitarian law and whether appropriate instructions indeed had been given to the air force and the like at the time. That's why I'm wondering, as a result of that experience, whether we have issued specific instructions or undertaken special precautions to ensure that those norms would be abided by.

The Chair: Mr. Minister, before answering, I'd just like to make one point.

I was listening closely to see if we were into international convenants that might be contained in the legislation. I understand that the minister, outside of appearing before this committee, is the Minister of National Defence, and would respond as the Minister of National Defence, but some of the issues we're getting into now would be more appropriately asked by the defence committee. I'm trying to find the relationship between that and the legislation.

Mr. Minister.

Mr. Art Eggleton: Does that mean I should answer it? Okay.

All operational directions given by the Chief of the Defence Staff are vetted by lawyers for their position vis-à-vis the law. There are rules of engagement that cover those provisions as well.

I can tell you that in the case of Kosovo, which you used as an example, every precaution was made to target only military entities or those things that supported the military effort of Yugoslavia. Every effort was made to avoid hitting civilians, to avoid killing or injuring them.

I went up in a CF-18 once, before that air campaign with respect to Kosovo, and went through a procedure. I got an understanding of the procedures they follow in identifying targets. I can tell you, our people make every precaution necessary to avoid hitting civilian targets.

Now, that kind of operation within the law would apply to Canada in any other case as well.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC/DR): Thank you, Mr. Chair, and thank you to the minister and his officials for being here.

My question is with respect to the mandate of the Communications Security Establishment, and in particular proposed section 273.64. We heard earlier from the Commissioner of the RCMP and the CSIS director. Particularly when we're talking about the information-gathering capacity abroad, I'm wondering what safeguards or what special efforts are taken by the department to see that there is no duplication. More importantly, what efforts, coming from this new authority or elsewhere, are put in place to ensure that there is sufficient communication between various departments—CSIS, the RCMP, the Department of Immigration, our international allies—to ensure that information is provided? Specifically, the power afforded by this legislation to you, Mr. Minister, in deciding whether an authorization under proposed subsection 273.65(1) will be satisfied...

Proposed paragraph 273.65(2)(d) says:

satisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.

What happens, for example, in the course of monitoring, after a proper wiretap has been granted, with domestic-type information, organized crime, or that related to the commission of a crime that would be outside this mandate? Is there a mechanism to pass that information along? Does the Minister of Justice then have to reapply for a warrant? How is that information communicated if in fact it comes to light that confidential information that otherwise would not have been obtained is scooped up in this new power?

Mr. Art Eggleton: I'm going to ask Mr. Coulter to answer, because a lot of that deals with day-to-day operations and coordination.

• 1700

Mr. Keith Coulter: You can come at it in two ways, really. In terms of the model and how it fits together, I think we're learning things about new areas where we have to cooperate and partner and make it work. It's fine-tuning something that has worked well for a number of years in a different zone. We're now into a concentrated effort against global terrorism, and all the networks are out there. Adding up the information and connecting all those dots is so fundamentally important.

As I was saying just before you came in, last Thursday and Friday I was down in the Washington area with my counterpart agency. They're going through the same thing in the United States. I mean, it's just unacceptable to have any of the old barriers in the way. We have to partner the right way and get the information shared.

The other thing here is that you're talking about law enforcement types of information when you mention within Canada, wiretaps, and so on. We're here to talk about the Communications Security Establishment. Actually, our flow of information is the other way, and we don't need a lot back unless it's a general dialogue about how we can target better and do things. In terms of the tests that are right in the legislation around information that we would, say, intercept involving any Canadian end, there's very rigorous criteria there.

If, for example, it was around the safety of a Canadian, international crime, or some essential piece of information, we would pass that to the right agency so that they can take the appropriate next steps. That's just what this is all about.

So I'm worried about the flow the other way. In terms of fitting it together, I think we're all working at that. This experience, in the long term, I think will help us all do that much better.

Mr. Peter MacKay: I just want to follow up on that.

The Chair: Quick question, Peter.

Mr. Peter MacKay: When you say you're concerned about the flow the other way, Mr. Coulter, are you saying that, again, the foreign information-gathering capacity right now leads you to have those concerns, that information currently will not be passed along to CSE?

Mr. Keith Coulter: No. In terms of foreign intelligence, we're collecting most of it in Canada. We need to flow that the right way to other agencies in Canada, where it's relevant, so that they can do their jobs. I mean, that's our job. Our clients are other government departments.

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): Thank you.

You've indicated this afternoon that without this legislative framework we will continue to be the weakest link vis-à-vis our counterparts in the U.K., Australia, and New Zealand, and that, with it, certainly our status and their confidence in us will be enhanced. I think we'll all agree here that's a positive measure and a positive development.

You use the example of two operatives operating offshore. We currently have jurisdiction to pursue that situation, or that file, if I may use that term. Should one of those operatives return to Canada, we would be prohibited from pursuing the Canadian component of that. In those situations, what do we do currently? Do we close the file and hand it off to CSIS or the RCMP, either in its entirety or in partnership with them? If it's the latter, with all the built-in safeguards they are subject to, could that continue currently, and with the same result?

Mr. Keith Coulter: What this is all about, really, is being able to follow communications into Canada when we're concentrating on that foreign target. If, for example, we had foreign intelligence that was relevant to a terrorist thing, we would—and we do, on a day-to-day basis—provide that to CSIS. They would follow it in whatever way they can, in line with their legislation and authorities.

But there's another aspect to this that maybe is being missed. When we're focused on a foreign target, the first sign of a link to Canada is what we're after. That's the initial communication so that we can trigger the system that there's a piece of relevant information.

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I think we're talking about very low-volume, highly significant communication, and as we try to understand that global network of terrorists, any links to Canada are extremely important to understand. The communication that we're trying to get after and follow from the foreign target, say, into Canada may be the first thing that gets CSIS onto the right issues.

Mr. Art Eggleton: If we have have information not within the legal mandate, however, there is deletion. As I said earlier, the reason we need this amendment is that while we can take communications information... foreigners abroad entirely. But if any of it comes to Canada, or even to a place unknown, then we just shut down. And that's just not acceptable in a time when we're trying to protect Canadians from any terrorist activity. We need to be able to follow those communications—still directing them at foreign entities, but protecting Canadians from any possible terrorist attack.

The Chair: Mr. Maloney, thank you.

Mr. Benoit.

Mr. Leon Benoit: Thank you again, Mr. Chair.

Mr. Minister, I want to get back to the scrutiny of this body. You indicated, in fact you said, Mr. Minister, that there really wouldn't be a substantive change in mandate due to this legislation. I would argue with that. I would say it is a substantial change in mandate when a Canadian citizen can be impacted in a way that they couldn't be before. So I would suggest that this would be a very good reason for changing the scrutiny body.

I think the optics of having an appointee of the minister or cabinet, an ex-judge who may have been appointed judge by a government when he or she originally became a judge, are bad optics. And I believe it isn't enough scrutiny.

Would the minister accept an amendment, if we were to bring an amendment to this legislation, that would put in place a body like SIRC so that we would be comfortable that there is proper scrutiny? Or possibly could SIRC itself provide scrutiny for this body as well as for CSIS? I know it's a different mandate, different department, but surely the government could get together enough to do that.

I don't know whether that would work, but certainly it might. We should look at it. Why don't we just put in place a body like SIRC so that Canadians feel comfortable with the scrutiny and with accountability?

Mr. Art Eggleton: Well, I'm not going to get into a quibbling argument about the use of the word “substantial”. What I said was that our core mandate was foreign intelligence gathering. It continues to be foreign intelligence gathering, plus the other purposes I talked about. But in reference to this specific area that you're referring to, it still is our core mandate.

There is a gap in terms of not being able to collect the information if it comes to, or originates in, Canada. That's what this legislation is all about. Call it substantial, but the point I'm making is that the core mandate remains the same.

The procedure we have for monitoring, as I've indicated, is not only justice department lawyers examining in advance but also the CSE commissioner monitoring. We also have the opportunity for the Auditor General, the Privacy Commissioner, and others to audit and monitor.

I believe the oversight mechanisms are working, and I believe the CSE commissioner function is working well.

Mr. Leon Benoit: Can I ask a question?

Mr. Art Eggleton: So I don't see the need to make the change you're talking about. I think the system works well.

The Chair: Mr. McKay.

Mr. John McKay: Perhaps I can just direct Mr. Coulter's attention to proposed paragraph 273.65(2)(a), the minister's authorization to do private intercepts. Correct me if I'm wrong, but... It says:

the interception will be directed at foreign entities located outside Canada

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So the interception itself, or the people involved in the interception, doesn't necessarily have to be outside Canada. It has to be directed at a foreign entity located outside Canada. Is that a correct interpretation?

Mr. Keith Coulter: That's correct.

Mr. John McKay: So to take a Detroit and Windsor example, I could intercept even in Windsor as well as in Detroit?

Mr. Keith Coulter: Well, if I may, that's a bad example. If we were to look at a target in, say, Afghanistan right now, we would be totally focused on the communications of that target. That's what this means.

Mr. John McKay: I just want to bring it up as an example of where you're going to come into some very strange questions.

If I am an investigator, either with you or with CSIS, and I'm into kind of a grey area as to whether it's a criminal activity or a terrorist activity, why would I ever bother getting a warrant when I can just walk into the minister's office and get the authorization?

Mr. Art Eggleton: As all these provisions say here, it has to be directed at foreign entities located outside of Canada; it can't be obtained by another means; it's justified; and there are satisfactory measures to protect privacy, etc. All of those things have to be provided. That's the mandate. If there's anything to be done with respect to local, something within Canada, that's under CSIS jurisdiction.

Mr. John McKay: The point being, none of these are very clean. These are not nice organizations where they are just doing a little bit of criminal activity in this jurisdiction and a little bit of terrorist activity in that jurisdiction. They're probably doing some of each in both.

Mr. Art Eggleton: We have to follow the laws of Canada, and the Criminal Code doesn't allow us to do that now. What we're asking for is an exemption with respect to just the provision of a communication that starts or is terminated in Canada, but it would still focus on foreign entities abroad.

If there was something to be done in the total Canadian context, or something involving a criminal context, that would require a warrant to be issued by—

Mr. John McKay: And an interesting question arises; when you get information of a criminal nature—say, for argument's sake, a major drug shipment—by virtue of your authorization, are you able to let CSIS know?

Mr. Keith Coulter: That one sounds like the RCMP, but, yes.

Mr. John McKay: So you can, even though that material is not necessarily terrorist?

Mr. Keith Coulter: You're talking about under the new regime—

Mr. John McKay: Yes.

Mr. Keith Coulter: —where we could, at one end, if it meant the essentiality under defence or security? That would qualify to be shared with the relevant RCMP or CSIS agency, yes.

The Chair: Thank you, Mr. McKay.

[Translation]

Mr. Bachand.

Mr. Claude Bachand: Thank you, Mr. Chairman.

Clause 273.65 says: “The Minister may, for the sole purpose of obtaining foreign intelligence”, and then it immediately stipulates the conditions under which this can be done. A little later on, with respect to the second ministerial authorization, subclause (3) states:

(3) The Minister may, for the sole purpose of protecting the computer systems or networks of the Government of Canada from mischief—

Does the minister have the latitude and the discretion to request the Communications Security Establishment to monitor a discussion between two Canadians, on Canadian soil, because Canadian computer networks may be under attack?

[English]

Mr. Art Eggleton: No. We can determine by communications interception in our own system whether in fact the system is under attack in any way. We cannot do what the law doesn't allow us to do, and that is to target Canadians or to intercept the communications between two Canadians.

The Chair: Mr. Bryden.

Mr. John Bryden: With regard to the history of the CSE, let me congratulate you on finally obtaining legislative legitimacy.

That said, I also know that you keep extensive records. Tell me, in your opinion, is there anything in those records that should be withheld from the public forever?

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I appreciate that you might want to keep your secrets for 25 years, or 30 years, or even 40 years. But I notice that in the United States many of the decrypts of the Second World War and after are being released. Are you in a situation where you feel that you are collecting records today that should never be released?

Mr. Keith Coulter: I'm not sure what the answer is to that. We don't have a history of going through this and doing releases. That is something we could look at.

It's an enormous volume of information. I should say, because this is the most important point for this legislation, that we do not keep, unless it has extremely high relevance, any communications that were ever intercepted accidentally or incidentally of Canadians. If we ever find any of that, it's taken to ground immediately. That's what the commissioner looks at and makes sure we don't keep.

But in terms of general information, that's something we could look at.

Mr. John Bryden: I'll give you the reason for my question. Clause 87 of the bill provides for a permanent exclusion of information that the CSE may have gathered on a certificate from the Attorney General of Canada. Again, I come back to the point, is there some kind of information that CSE collects in principle that should never, ever be viewed—not by a historian, not by a court, not by anyone? Do you have a sense that you have that kind of information?

Mr. Keith Coulter: Yes, there would be some of that. I was suggesting that things could be vetted and categorized. But I think you would find in the United States there are many things in that category. It's not just released carte blanche.

Mr. John Bryden: The point is, there's no oversight. In the United States, there are exemptions under the freedom of information legislation, but there's still appeal to the courts. What's happening in clause 87 is that there's no oversight, nothing. No Information Commissioner, no court, gets to look at your documents to determine whether they should be retained indefinitely.

But we'll leave that question.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay: Minister, you indicated earlier that the Privacy Commissioner and Information Commissioner had some oversight capacity in all of this. We heard from both of those gentlemen this afternoon, who indicated quite clearly that they're very concerned that, upon the issuance of a ministerial certificate, their ability to perform any kind of a task is essentially gone. It's been gutted.

More to the point, my question is about capacity to do this expanded role of information gathering, if you will. Your department is in need of all sorts of funding—for equipment, helicopters, all sorts of new personnel matters. This would call upon personnel in the military to gather information, conceivably through wiretaps, satellite communications, spying, and listening devices. It gives them fairly broad, sweeping powers—military police.

Are you satisfied that there are resources within your current budget, or are you going to require, again, further resources to carry out these new responsibilities being given to members of the armed forces?

Mr. Art Eggleton: First of all, CSE is largely a civilian establishment. It has about 1,000 personnel, as we indicated earlier. About 20 military people attached to CSE help in terms of the coordination with the intelligence-gathering systems of the Canadian Forces. But that's a separate entity.

Mr. Peter MacKay: Is it funded under your budget?

Mr. Art Eggleton: Yes, both of them are funded under my budget. But one comes under the Canadian Forces, the other does not. The other comes under... is a separate entity.

Mr. Peter MacKay: But it's paid for out of your budget, correct?

Mr. Art Eggleton: Yes, that's correct. But I want to distinguish between the military operations of information and intelligence gathering versus the Communications Security Establishment. Actually, although the CSE goes back to the Second World War, when it did have a more direct military involvement, when it was started up again in 1946 it was started up under the National Research Council. It came back to the defence department in 1975.

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That's what we're focusing on here in terms of this legislative provision. While the core mandate is the same—foreign intelligence gathering directed at foreigners abroad—as I said, this piece of legislation provides for the amendment that would allow us to better track any terrorist information should it come into Canada, and to protect our own systems. That's what this thing is all about.

There has been provision, in fact, of an additional $37 million for the upgrade of equipment for this organization. As we indicated earlier in response to a previous question on the matter of additional resources for CSE, if it should need additional human resources, it also is under examination. No determination has been made to this point in time.

Mr. Peter MacKay: Is that the equipment—

The Chair: Mr. MacKay, I have two more questions.

Mr. Art Eggleton: It includes the kind of equipment they need to be able to do their job. As I've said, there are three things I would say about that. One, the volume has increased since September 11. There's a larger volume of intelligence information for these people to gather and analyse. Second, there is the need for new technology. As you know, technology changes rapidly, and we want to make sure they have the best kind of technology to be able to do the job and to be able to do it on an interoperable basis with our allies and our partners in this so that we are able to have the same level of sophistication—or as close as we can to it—as they do.

So that's what this is all about.

The Chair: Mr. Owen, quick question.

Mr. Stephen Owen: Two points, very briefly.

Mr. Coulter, in answer to Mr. McKay's question as to satisfying the condition of authorization, the fourth condition, to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security, I think you answered the question he put to you—that is, what if you intercepted information about a major drug importation—with, yes, of course you would give that to CSIS or the RCMP.

It seems to me that would not be authorized under this section. In fact, it would be prohibited under it.

Mr. Keith Coulter: Basically, if you apply this test of essentiality, it would be three things: essential to protect the lives or safety of individuals; whether there was evidence of serious criminal activity; or whether the communications were essential to understand and exploit foreign intelligence. So to meet that test of essentiality it would include the serious criminal activities only.

Mr. Stephen Owen: It would link back to the definition of terrorist activity in the bill?

Mr. Keith Coulter: No.

Mr. Art Eggleton: Terrorism is what has precipitated this, but it's not the only thing that's covered by it. As it says here, information that's essential; international affairs; defence or security. The organization has existed for some 60 years. It's gone through a Cold War period and it's gone through a post-Cold War period, but the information that is gathered is more than just terrorist activity. That's just the focus now. We particularly need this additional authority to be able to get information coming to or from Canada because of the particular emphasis we now need to place on terrorism activities.

Mr. Stephen Owen: I guess the concern is that the part VI authorizations under the Criminal Code to intercept are on reasonable and probable grounds that serious criminal activity may be occurring, and there's information. This excludes part VI. Difficult as it may seem to most lay people, I think this says that you can't pass on or use that information unless it's related to one of these three. Much criminal activity might not, so you would have to, as you say, put it to ground.

The Chair: Thank you, Mr. Owen.

Mr. Benoit.

Mr. Leon Benoit: Thank you.

I have two specific questions, very short. First, the minister said earlier that there will be the scrutiny of a commissioner, and yet proposed subsection 273.63(1) says the Governor in Council “may” appoint. That's my first question. Why is it “may” and not “will”?

The second is in regard to proposed subsections 273.62(3) and (4). They say:

(3) The Minister may issue written directions to the Chief respecting the carrying out of the Chief's duties and functions.

(4) Directions issued under subsection (3) are not statutory instruments within the meaning of the Statutory Instruments Act.

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I'm told I should never ask a question if I don't know the answer, but I don't know the answer to this. My question is, will these proposed subsections together affect in any way the scrutiny of the Information Commissioner and the Privacy Commissioner? Will this have any impact whatsoever on the ability of the Information Commissioner and the Privacy Commissioner to do their jobs?

The Chair: Thank you, Mr. Benoit.

Last word to the panel.

Mr. Art Eggleton: As I understand it, the word “may” is the traditional way in which it is put into legislation. It's enabling, but certainly there is every intent to continue this practice. In fact, it outlines the duties of the commissioner fully there, and for the first time in a legislative format, which I think strengthens the oversight aspect of this operation.

And you mentioned which part of the bill?

Mr. Leon Benoit: On page 120 of the bill, proposed subsections 273.62(3) and (4). Could they in any way restrict the powers and the capability of the Information Commissioner or Privacy Commissioner to do their jobs?

Mr. Art Eggleton: No.

Mr. Leon Benoit: Not at all?

Mr. Art Eggleton: Not at all.

Mr. Leon Benoit: Okay. Thank you.

The Chair: On that note, I adjourn the meeting. I look forward to seeing everyone tomorrow.