SECU Committee Report

The Government agrees that all of the activities of the Communications Security Establishment (CSE) must adhere strictly to the provisions of the Charter and the Privacy Act, in addition to all other laws of Canada. Indeed, operating scrupulously within the laws of Canada is the first pillar of the CSE’s values and ethics code and it has implemented stringent measures to protect the privacy of Canadians. In particular, CSE takes very seriously its obligations under the National Defence Act (NDA), which prohibits CSE from directing its activities at Canadians, wherever they may be located, or anyone in Canada. Furthermore, the NDA mandates the CSE Commissioner to review CSE’s activities to ensure they are lawful. As such, the Government believes that the NDA, in conjunction with other relevant Canadian laws, already meets the objectives underlying the Subcommittee’s recommendations.

Regarding the proposal to require the CSE Commissioner to review interception activities for compliance with the Charter and Privacy Act , paragraph 273.63(2)(a) of the NDA already states that the Commissioner has a duty to review all of the activities of CSE to ensure that they are in compliance with the law. Similarly, as with any federal institution, the activities of CSE are automatically required to conform to the Charter, Privacy Act and any other applicable legislation, and making specific reference to this in the case of CSE might actually weaken this fundamental principle in its application to other institutions for which such a reference was not made. Finally, with respect to legal issues of interpretation raised by the former CSE Commissioner, CSE is working with Department of Justice officials to address these issues, with a view to bringing forward proposed legislative amendments in due course.

Part 2 of the ATA enacted the Security of Information Act (SOIA), replacing the Official Secrets Act. Section 4 of the older Act was included in the SOIA, essentially without amendment. The SOIA focuses on conduct related to information security, such as espionage, that is or is likely to be harmful to Canada. It takes into account not only governments of traditional states, but also new actors such as governments-in-waiting, governments in exile and other foreign powers, as well as terrorist groups. Section 4 deals with the wrongful communication, use, reception, retention and failure to take reasonable care of certain government information.

In October 2006, sections 4(1)(a), 4(3) and 4(4)(b) of the SOIA were declared unconstitutional by the Ontario Superior Court of Justice in Juliet O’Neill and The Ottawa Citizen v. the Attorney General of Canada. ^[8] After careful consideration, the Attorney General of Canada decided not to appeal the decision.

The Government has previously indicated that it will consider legislative options to reform section 4; in that process it will bear in mind the comments of the Subcommittee and the recommendations made by witnesses who appeared before it.

The CSIS Public Report (2004-2005) demonstrates the continued necessity of the SOIA. For example, in considering the current threat environment, CSIS observes that terrorism is the most serious security threat. Various threats to Canada are cited, including the continued intimidation and exploitation by foreign entities and terrorist groups of Canada’s immigrant and expatriate communities; the threat of cyber-attacks against private-sector and government targets; attempts by foreign entities and terrorist groups to acquire more lethal weapons, including chemical, biological, radiological and nuclear devices; spying and economic espionage. Offences in the Act address these concerns, as does the definition of “harms to Canadian interests” (also known as a purpose “prejudicial to the safety or interests of the State”) in section 3 of the SOIA.

Regarding section 3 of the Act, the Government believes that moving the section under the “Interpretation” heading would improve the organization of the Act. Concerning the question of whether the list of purposes prejudicial to the safety or interests of the State in section 3 should be read as an indicative list or an exhaustive definition, the Government points out that section 3 is intended to be an exhaustive definition. The definitional nature of the present list operates as a safeguard. It allows persons to know what specific types of activities will be caught by the Act, thereby increasing Charter conformity. The Government does not believe that the provision should be expanded or made open-ended. Section 3 was designed to clearly identify harms from which Canada merits protection under the Act, including terrorist activity, interference with critical infrastructure, and the development of weapons of mass destruction in contravention of international law. In this way, the definition improved upon the former Official Secrets Act by providing greater clarity. The Government takes note of the Subcommittee’s observation about the reference to “…any other purpose prejudicial to the safety or interests of the State…” in section 5, and will examine whether this wording is still necessary. ^[9]

The Government shares the Subcommittee’s view that the security certificate process is necessary to fulfill the obligation of democratic state institutions to protect themselves from being undermined and attacked. As the Subcommittee noted, great efforts have been made to balance, on the one hand, the need to protect Canadian society and, on the other, the rights of those subject to the process. The Subcommittee has suggested that more needs to be done to assure individual rights and freedoms in the security certificate process. On February 23, 2007, the Supreme Court of Canada issued its decision in the Charkaoui v. Canada (Citizenship and Immigration) ^[10] case and held that the Government could do more to protect the rights of the individual during the process used to determine if a security certificate is reasonable. Specifically, the Court endorsed the development of a model which included an independent agent. The Government accepts the decision of the Supreme Court and notes that many of the principles set forth in that decision were shared by this Subcommittee. The Government also notes that the Supreme Court suspended the effect of its decision for one year to allow the Government to develop legislation.

The Subcommittee also recommended limiting the evidence used when assessing a security certificate. It expressed the view that allowing only evidence which is “reliable” as well as “appropriate” would help render evidence obtained by torture inadmissible. The Government supports the proposed amendment. The Government also notes that, pursuant to subsection 269.1(4) of the Criminal Code, the contents of any statement obtained as a result of the commission of the Criminal Code offence of torture (section 269.1) is already inadmissible in evidence in any proceedings over which Parliament has jurisdiction.

In relation to the recommendation that an application to the Minister of Citizenship and Immigration for protection be allowed only after a security certificate has been found to be reasonable by a Federal Court judge, the Government agrees with the stated objective of making the process more expeditious and will examine methods to do so.