NDVA Committee Meeting
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37th PARLIAMENT, 3rd SESSION
Standing Committee on National Defence and Veterans Affairs
EVIDENCE
CONTENTS
Tuesday, April 20, 2004
| ¹ | 1540 |
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The Chair (Mr. Pat O'Brien (London—Fanshawe, Lib.)) |
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The Right Honourable Antonio Lamer (Commissioner, Office of the Communication Security Establishment Commissioner) |
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The Chair |
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Mr. Jay Hill (Prince George—Peace River, CPC) |
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The Chair |
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Mrs. Elsie Wayne (Saint John, CPC) |
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Right Hon. Antonio Lamer |
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Mrs. Elsie Wayne |
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Right Hon. Antonio Lamer |
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Mrs. Elsie Wayne |
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The Chair |
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Ms. Joanne Weeks (Executive Director, Office of the Communications Security Establishment Commissioner) |
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Mrs. Elsie Wayne |
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Right Hon. Antonio Lamer |
| º | 1605 |
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Mrs. Elsie Wayne |
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The Chair |
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Right Hon. Antonio Lamer |
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The Chair |
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Mr. Jay Hill |
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Right Hon. Antonio Lamer |
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Mr. Jay Hill |
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Right Hon. Antonio Lamer |
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The Chair |
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Mr. Claude Bachand (Saint-Jean, BQ) |
| º | 1610 |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
| º | 1615 |
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The Chair |
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Right Hon. Antonio Lamer |
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The Chair |
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Mr. Bob Wood (Nipissing, Lib.) |
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Right Hon. Antonio Lamer |
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Mr. Bob Wood |
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Right Hon. Antonio Lamer |
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Mr. Bob Wood |
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Right Hon. Antonio Lamer |
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Mr. Bob Wood |
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Right Hon. Antonio Lamer |
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Mr. Bob Wood |
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Right Hon. Antonio Lamer |
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Mr. Bob Wood |
| º | 1620 |
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Right Hon. Antonio Lamer |
| º | 1625 |
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The Chair |
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Hon. Bill Blaikie (Winnipeg—Transcona, NDP) |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
| º | 1630 |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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Right Hon. Antonio Lamer |
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Hon. Bill Blaikie |
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The Chair |
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Mrs. Cheryl Gallant (Renfrew—Nipissing—Pembroke, CPC) |
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Right Hon. Antonio Lamer |
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Mrs. Cheryl Gallant |
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Right Hon. Antonio Lamer |
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Mrs. Cheryl Gallant |
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Right Hon. Antonio Lamer |
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Ms. Joanne Weeks |
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Right Hon. Antonio Lamer |
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The Chair |
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Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.) |
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Right Hon. Antonio Lamer |
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Mr. John O'Reilly |
| º | 1640 |
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Right Hon. Antonio Lamer |
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Mr. John O'Reilly |
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Right Hon. Antonio Lamer |
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Mr. John O'Reilly |
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Right Hon. Antonio Lamer |
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Mr. John O'Reilly |
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Right Hon. Antonio Lamer |
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The Chair |
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Mr. Claude Bachand |
| º | 1645 |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
| º | 1650 |
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The Chair |
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Right Hon. Antonio Lamer |
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The Chair |
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Right Hon. Antonio Lamer |
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The Chair |
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Right Hon. Antonio Lamer |
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The Chair |
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Mr. Claude Bachand |
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The Chair |
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Right Hon. Antonio Lamer |
| º | 1655 |
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The Chair |
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Mr. Murray Calder (Dufferin—Peel—Wellington—Grey, Lib.) |
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Right Hon. Antonio Lamer |
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Mr. Murray Calder |
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Right Hon. Antonio Lamer |
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Mr. Murray Calder |
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Right Hon. Antonio Lamer |
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Mr. Murray Calder |
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Right Hon. Antonio Lamer |
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Mr. Murray Calder |
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Right Hon. Antonio Lamer |
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Mr. Murray Calder |
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Right Hon. Antonio Lamer |
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The Chair |
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Mr. Murray Calder |
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The Chair |
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Mrs. Cheryl Gallant |
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The Chair |
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Mrs. Cheryl Gallant |
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Right Hon. Antonio Lamer |
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Mrs. Cheryl Gallant |
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Right Hon. Antonio Lamer |
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Mrs. Cheryl Gallant |
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Right Hon. Antonio Lamer |
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The Chair |
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Ms. Joanne Weeks |
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The Chair |
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Ms. Joanne Weeks |
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Mrs. Cheryl Gallant |
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Ms. Joanne Weeks |
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Mrs. Cheryl Gallant |
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Ms. Joanne Weeks |
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The Chair |
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Mrs. Elsie Wayne |
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The Chair |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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Right Hon. Antonio Lamer |
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Mr. Claude Bachand |
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The Chair |
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Mrs. Cheryl Gallant |
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Right Hon. Antonio Lamer |
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Mrs. Cheryl Gallant |
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Right Hon. Antonio Lamer |
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Mrs. Cheryl Gallant |
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Right Hon. Antonio Lamer |
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The Chair |
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Hon. David Price (Compton—Stanstead, Lib.) |
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Right Hon. Antonio Lamer |
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Hon. David Price |
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Right Hon. Antonio Lamer |
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The Chair |
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Mr. Claude Bachand |
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The Chair |
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Right Hon. Antonio Lamer |
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The Chair |
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Hon. David Price |
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The Chair |
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Right Hon. Antonio Lamer |
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The Chair |
CANADA
Standing Committee on National Defence and Veterans Affairs |
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EVIDENCE
Tuesday, April 20, 2004
[Recorded by Electronic Apparatus]
¹ 
(1540)
[English]
The Chair (Mr. Pat O'Brien (London—Fanshawe, Lib.)): We can begin.
Let me call to order the eighth meeting of the Standing Committee on National Defence and Veterans Affairs. My apologies to our witnesses for the slight delay. We had voting duties in the House of Commons--members on both sides, of course. That's why we were a little bit held up.
It's my pleasure to welcome today the Right Honourable Antonio Lamer, Communications Security Establishment Commissioner, and Joanne Weeks, executive director of the same organization.
Welcome to you. We'd be pleased to hear your opening remarks.
The Right Honourable Antonio Lamer (Commissioner, Office of the Communication Security Establishment Commissioner): Thank you, Mr. Chairman, for inviting me to appear before your committee today. I appreciate this expression of interest in my office by your committee.
This is the first time that a commissioner of the Communications Security Establishment has appeared before this committee. I am accompanied by Joanne Weeks, the executive director in my office, who was invited to accompany me. I would have brought her along anyway.
I am aware of the valuable work this committee has undertaken, including your study of the important Canada-U.S. defence relationship. In my capacity as commissioner of the Communications Security Establishment, I now report to the Minister of National Defence. I have some familiarity with National Defence. You may know, for example, that I conducted a review last year for Minister McCallum on the military justice provisions of the National Defence Act.
[Translation]
During my 20 years on the Supreme Court of Canada, 10 of them as Chief Justice, I witnessed and participated in the evolution of human rights and freedoms in this country, as we grappled with the application and impact of Canada's Charter of Rights and Freedoms. This experience dovetails very well with my duties as CSE Commissioner, because safeguarding the rights of Canadians, including particularly the right to privacy, is an important element of my office's activity.
In accepting the order-in-council appointment last June, therefore, I was both honoured and pleased to have the opportunity of continuing to serve my country in a meaningful way.
Today, Mr. Chairman, I will familiarize your committee with my role as CSE Commissioner.
[English]
Let me start, though, by briefly describing the object of my mandate, the CSE itself. I say briefly because it is more appropriate that you hear any detailed description of CSE's activities from its own officials. I know you met recently with the chief, Mr. Keith Coulter, and some of his officials. Nonetheless, it is important for context to recall the basics.
The CSE is a civilian agency of the Department of National Defence. It is a highly complex organization, with a threefold mandate: first, to acquire and provide the government with foreign signals intelligence; second, to provide advice, guidance, and services to help ensure the protection of the Government of Canada's electronic information and information infrastructures; and third, to provide technical and operational assistance to federal law enforcement and security agencies.
Unlike my office, the CSE has a relatively long history as an agency of the Government of Canada. In fact, 2006 will mark the 60th anniversary of the creation of its predecessor organization, the Communications Branch of the National Research Council.
The Communications Branch was renamed the Communications Security Establishment and transferred to the Department of National Defence in 1975. It was a very secret organization. In fact, the government did not even acknowledge its existence until 1983, during the debate about the Canadian Security Intelligence Service Act.
During the Cold War, the CSE evolved as a result of the close relationships Canada enjoyed with the United Kingdom, United States, Australia, and New Zealand. The CSE's relationships with similar agencies in these countries continue today, and these agencies routinely exchange intelligence, technology, and technical knowledge.
The CSE employs a wide range of skilled individuals, computer scientists, engineers, mathematicians, linguists, and analysts. Collectively, in my view, their knowledge, experience, and work are very impressive.
After the tragic events of September 11, 2001, the CSE received additional funding and has employed additional personnel to meet the government's objectives. The organization also received a legislated mandate as a result of the introduction of amendments to the National Defence Act, which were made in the omnibus Anti-terrorism Act passed in December 2001.
¹ (1545)
[Translation]
Now I would like to turn to my position and mandate, Mr. Chairman.
The commissioner's job itself is a part-time appointment. I devote about two days per week on average to the work. As an aside, I would say that this is a little bit uneven. Sometimes a week will go by without me being there and, on other weeks, I am there three or four days. Everything depends on what's happening. It is not about me being there every Monday or Tuesday, for example.
My core mandate, as set out in the National Defence Act, is to review the activities of CSE to ensure they are in compliance with the law and to report to the Minister of National Defence. I would emphasize the fact that I am there to ensure that their activities are in compliance with the law.
In addition, my other primary duties as commissioner are: to undertake any investigation I consider necessary, in response to a complaint about CSE, and to inform the Minister of National Defence and the Attorney General of Canada of any activity of CSE that I believe may not be in compliance with the law.
I am required to submit an annual report on my activities and findings to the Minister of National Defence within 90 days of the end of each fiscal year, which is March 31. The Minister tables my report before Parliament. I also submit classified reports to the minister. These reports are based on the results of reviews of CSE's activities conducted by my office.
CSE is prohibited by law from targeting Canadians or persons in Canada. Its focus must be on foreign entities, outside Canada. This is a very important aspect of CSE.
However, in certain circumstances, the minister may authorize CSE to intercept private communications for the purposes of obtaining foreign intelligence and protecting the computer systems or networks of the government from mischief, unauthorized use or interference. I emphasize again, the interception must always first result from targeting a foreign communication. CSE may use and retain a private communication so long as the target is the foreign end of the communication and only if it is essential to international affairs, defence or security.
The act mandates me to review CSE's activities under these ministerial authorizations and to report annually to the minister.
¹ (1550)
[English]
The CSE is also mandated to assist law enforcement and security agencies. In this context, the CSE may be involved in the interception of private communications under judicial warrant. In reviewing all these activities, I have a duty to ensure that the CSE fulfills that part of its legislated mandate requiring it “to protect the privacy of Canadians in the use or retention of that [intercepted] information.”
Finally, I have a role under the Security of Information Act, which you may know replaced the Official Secrets Act in December 2001, as a result of the passage of the Anti-terrorism Act. The Security of Information Act prohibits people who are “permanently bound to secrecy”, such as CSE employees, from disclosing “special operational information”. If an individual is charged with disclosing such information, a judge or court can consider what is called a “public interest defence” for that person—but only if he or she has followed a series of steps, set out in the legislation, before disclosing the information. In this case, of course, we are talking about the person having a concern regarding an offence being committed by an employee of the CSE.
The first step is for the person to bring their concern to their deputy head or the Deputy Attorney General. If there is not a response in a reasonable time, the individual must then bring those concerns to me and allow a reasonable time for a response.
I must say that, as of yet, no one has approached me, or my predecessor, I'm told, in this context.
¹ (1555)
[Translation]
Now, Mr. Chairman, what have I have been doing since my appointment last spring? During the first few months after my appointment, I received many briefings from officials at CSE, including meetings with the chief and with his executive team. I have also received briefings from my own, well-experienced staff.
I have met with the minister and also his predecessor. I have also met with the Security Intelligence Review Committee as well as the security and intelligence coordinator, who is also the national security advisor to the prime minister, and to whom the chief of CSE reports on matters of operations and policy.
[English]
I have also submitted five classified reports to the minister, two of which were commenced under my predecessor's mandate and concluded under mine. These reports contain recommendations for the minister's consideration. I have approved recently a three-year work plan for my office, which will be reviewed annually.
With this brief explanation of my mandate and recent activities, Mr. Chairman, let me conclude these remarks by telling you a bit about the background, origins, and evolution of the role of the commissioner.
In 1990, a special committee charged with reviewing the CSIS Act recommended that Parliament established CSE by statute and provide for a review of CSE's activities. Although the government chose not to adopt that particular recommendation at the time, it did indicate that it was “considering providing the Minister of National Defence with some additional capacity for a review of CSE”. In due course, it decided to establish the position of a commissioner under the Inquiries Act.
The order in council appointing the first commissioner was passed in June 1996. It was, and is, as I stated earlier, a part-time function. The first commissioner served three terms over seven years. In December 2001, the omnibus Anti-terrorism Act introduced amendments to the National Defence Act that provided a statutory basis for the mandate for CSE, as well as the responsibilities of the commissioner.
The commissioner's office is separate and independent from CSE. I have a staff of five full-time employees. In addition, I engage the services of several subject-matter experts, as and when required. My annual budget is approximately $900,000.
[Translation]
That concludes my opening remarks, Mr. Chairman. I trust this very brief description of my role and the environment in which I operate has been helpful to the committee. It will be my pleasure, as that of Ms. Weeks, to answer any question that you may have.
Thank you.
[English]
The Chair: Thank you very much, Mr. Lamer.
I think both sides of the table on this committee would agree, following your very distinguished career, including in the Supreme Court, that you're an excellent choice for this kind of position. We appreciate your being here and giving us this overview, and now I'm sure there will be questions from my colleagues.
Before we start that, maybe we can congratulate Mr. Hill on the second-reading passage of his bill in the House of Commons, widely supported on both sides of the chamber, I might note. Well done, Jay.
Let me start with the official opposition. Mr. Hill, you have seven minutes.
º (1600)
Mr. Jay Hill (Prince George—Peace River, CPC): Thank you for the congratulatory message, Mr. Chairman. I appreciate the support my bill had on both sides of the House.
I'd also like to offer my congratulations to the Right Honourable Tony Lamer on his appointment, but I'm going to pass to my colleague, who has some questions she'd like to pose. Thanks.
The Chair: Mrs. Wayne.
Mrs. Elsie Wayne (Saint John, CPC): Thank you, Mr. Chair.
Thank you very much, and welcome. We're very pleased to see both of you here.
Here's my first question. The 2002-03 annual report of the CSE Commissioner noted that recommendations were made concerning the support provided by the CSE to the Canadian Security Intelligence Service in order to address weaknesses in policy and practice that could lead to errors in handling sensitive information and to an inconsistent application of policy and law. Has the CSE indicated to the commissioner what actions are being taken to address these concerns?
Right Hon. Antonio Lamer: Of course, when you bring me to a period prior to my appointment, I have to throw myself in the arms of Ms. Weeks. She informs me that these concerns have since been addressed.
Mrs. Elsie Wayne: They have.
Right Hon. Antonio Lamer: She might want to add something to that.
Mrs. Elsie Wayne: Yes.
The Chair: Ms. Weeks, would you like to comment?
Ms. Joanne Weeks (Executive Director, Office of the Communications Security Establishment Commissioner): Thank you, Mr. Chair.
In response to the question, Mr. Chair, these were policy weaknesses and retention of documents beyond normal archival periods. These matters have been addressed subsequently.
Mrs. Elsie Wayne: Right Honourable Tony Lamer, you may want Joanne to answer my next question as well, and we'll accept that.
Your predecessor indicated in the 2002-03 annual report that he had concerns about the new role proposed for the new commissioner--which is you--in Bill C-7, the Public Safety Act, in the review of activities of the CSE related to the protection of the computer systems and networks of the Canadian Forces and National Defence. Are measures being taken or have any been taken to enhance the ability of the Office of the CSE Commissioner to carry out these new responsibilities?
Right Hon. Antonio Lamer: Yes. The impact of Bill C-7 is potentially very great because it would require me to review activities conducted under a ministerial authorization involving the interception of private communications to safeguard the computer systems and networks of the Department of National Defence and the Canadian Forces. What seems strange to me is that Bill C-14, An Act to amend the Criminal Code and other Acts, which is also before the House, proposes amendments to the Criminal Code and the Financial Administration Act that would give the departments and agencies the same powers as Bill C-7 gives to the National Defence without requiring ministerial authorizations or my review. I've raised this with a number of officials and I understand it is being looked into. If I may add this, I'm somewhat encouraged at this point in time that it's being looked into--to my satisfaction anyway.
Just to give you an example, on a given day, a ship in the gulf had over 18,000 communications--on one day. It's simply impossible. I'd have to have thousands of people working for me to do this.
This is going to be handled. It's being looked into. I can't go any further at this point in time. I can't assume anything more than to say it's being taken very seriously and looked into.
º (1605)
Mrs. Elsie Wayne: I'm very pleased, Mr. Chairman, to hear that it is being looked into, because it is a major concern, and one that I think privately this committee should stay on top of as well.
Thank you very much.
The Chair: Thank you, Mrs. Wayne.
Further to that--my colleague read my mind, as she often does--I wonder, sir, when it has been looked into, could you give us an update, confidentially if necessary?
Right Hon. Antonio Lamer: I certainly will, Mr. Chairman. I expect that I will be in a position to do that sooner rather than later.
The Chair: Okay. Thank you very much.
There's still one minute, Mr. Hill.
Mr. Jay Hill: Thank you, Mr. Chair.
I just have one follow-up question on that. This new role you're going to take on is basically to monitor these types of communications and ensure that there's no infringement, if I can call it that, upon the computer systems. How do you foresee that you'd be able, given the incredible amount of communications, as you say--I'm assuming you're referring to e-mails and things like that from private soldiers that might be--
Right Hon. Antonio Lamer: To their families.
Mr. Jay Hill: Right.
On the one hand, how are you going to guarantee the privacy of their personal communications with their spouses, families, children, or whatever, and on the other hand manage the incredibly tricky job of protecting the integrity of the computer system?
Right Hon. Antonio Lamer: If it gets fixed the way I think it's going to be, I don't think I will be involved. The deputy heads of each department will use their respective organizations to protect their communication systems, the same way a private company does.
If Bill C-7 remains as it is and is proclaimed as it is, then there will be a problem. I've written to the appropriate persons and raised the matter with them, that it would create a great problem for my office. With six people, there's just no way we could oversee all of the Government of Canada's communications systems and the protection thereof. So that's the problem.
As I said, I'm not at liberty to say anything more than that I am confident that the problem will go away.
The Chair: Thank you, Mr. Hill.
[Translation]
Mr. Bachand, you have five minutes.
Mr. Claude Bachand (Saint-Jean, BQ): I too would like to welcome the Right Honourable Justice Lamer. When he came to Saint-Jean for a meeting with the Chamber of Commerce, I told him that we seldom had an opportunity to meet with right honourable gentlemen of his ilk. We see one a day at the House, but these people are not right honourable justices. We don't meet with these people very often. He told me that there was a third right honourable person, in this case the Governor General. I asked him to recuse himself because of the Quebec cause, but he replied that this was not possible.
Despite that, I have fun memories of your visit to my region, Mr. Lamer. I have a whole series of questions to ask you, but we have only seven minutes. I will try to proceed as quickly as I can.
In my opinion, CSE is currently not governed by any piece of legislation. Indeed, it does come under the National Defence Act, but there is no piece of legislation specific to it. We do have an act for the RCMP and another one for CSIS, but CSE is included in portions of the National Defence Act.
º (1610)
Right Hon. Antonio Lamer: In chapter N-5.
Mr. Claude Bachand: Indeed, in addition, to my knowledge, the CSE budget is not public knowledge. You cannot tell me what your total budget is. You told me what the total budget for the officer of the commissioner is, namely your salary, which is $100,000, but the total budget—
Right Hon. Antonio Lamer: A hundred thousand dollars?
Mr. Claude Bachand: Is that not what you said earlier?
Right Hon. Antonio Lamer: I did not talk about my salary.
Mr. Claude Bachand: So what is this $100,000 that you mentioned earlier?
Right Hon. Antonio Lamer: I said that the budget was approximately $900,000.
Mr. Claude Bachand: Nine hundred thousand dollars?
Right Hon. Antonio Lamer: This is the total budget for the organization.
Mr. Claude Bachand: All right.
Right Hon. Antonio Lamer: If you would like to give me $100,000, I will gladly take it, but that certainly is not what I am being paid.
Mr. Claude Bachand: Your salary is not public knowledge?
Right Hon. Antonio Lamer: No.
Mr. Claude Bachand: Neither the budget nor the number of CSE employees are public knowledge.
Right Hon. Antonio Lamer: I just made it public. Are you talking about CSE?
Mr. Claude Bachand: In French, the CST means the Centre de la sécurité des télécommunications. In English, your organization is referred to as the Communication Security Establishment, I believe. Is that right?
Right Hon. Antonio Lamer: I think that you are best to direct these questions to Mr. Keith Coulter, who is responsible for CSE. I do not know whether or not his budget and the size of his staff are public knowledge. My role is to ensure that the organization operates in compliance with the law. These are laws dealing with national security. However, anything that pertains to the Financial Administration Act or labour relations legislation does not come under the purview of the commissioner's office.
Mr. Claude Bachand: I want to come to that, commissioner, because all the people who work at the CSE also do not come under the Public Service Commission. Appointments to the CSE are not referred to the National Defence Committee.
I come now to my question, finally. Does it not seem to you that we do not have enough information from the CSE to assess the validity of the guarantees you have given us, as commissioner, that everything is in order, except for the fact that you are a right honourable former justice of the Supreme Court of Canada?
In my opinion, this is the problem with the CSE. We have almost nothing regarding accountability to Parliament, nor can we assess the validity of the guarantees we are given, because we do not have access to the entire file. Does it not concern you that parliamentarians or Parliament are rather left out of everything regarding the CSE?
Right Hon. Antonio Lamer: That has to do with Parliament. Parliament chose to set up the CSE in a certain way, and that has nothing to do with me. It is not up to me to criticize the way in which Parliament set up its foreign intelligence system.
Mr. Claude Bachand: Thus, your role is solely to determine whether the work undertaken by the CSE is in keeping with the act, and all the laws of Canada, I imagine.
Right Hon. Antonio Lamer: Not all the laws of Canada.
Mr. Claude Bachand: Do you intervene if you find that an activity is in violation of the Canadian Charter of Rights and Freedoms?
Right Hon. Antonio Lamer: I intervene if the Criminal Code is involved, or statutes that have to do with national security. However, labour relations are not my responsibility, nor is the Financial Administration Act.
Unlike the mandate of those responsible for CSIS, my responsibility is limited to matters of legality. Those responsible for CSIS have a somewhat broader mandate; they also deal with matters of efficiency, and I do not.
Mr. Claude Bachand: As regards legality, you will agree that the members of Parliament here have nothing to go on, because they do not have the information they require. We are forced to note that you say quite regularly that everything was done properly, as Mr. Bisson did before you for several terms. For our part, however, we do not have the information we require to confirm that what the commissioner tells us is accurate. Only one person can determine the legality of all this, and that is you yourself. We cannot assess that.
Right Hon. Antonio Lamer: This is what Parliament wanted, and I respect the will of Parliament.
Mr. Claude Bachand: Very well.
º (1615)
[English]
The Chair: I will just add, from the commissioner's report, that there's an annual report by you to the minister, who will then have to table it in the House. So colleagues will have an opportunity to pursue it in that venue.
Right Hon. Antonio Lamer: Yes.
The Chair: Thank you, Mr. Bachand.
Now we'll go over to the government side for seven minutes. First is Mr. Wood.
Mr. Bob Wood (Nipissing, Lib.): Thank you, Mr. Chair.
Sir, in your opening remarks you said that the commissioner's job itself is a part-time appointment. You devote a couple of days a week to this job. Don't you feel it should be a full-time job?
Right Hon. Antonio Lamer: It could be a full-time job with a staff ten or twenty times its size. Parliament has decided that given the nature of the activity, it is not necessary to have a large organization overseeing CSE.
It's obvious that if the staff were larger we would be in a position to sample--we proceed by sampling, not phoning in advance, and pulling out a file to see if it's in conformity with the law. If you multiplied the staff by ten, we'd pull out ten times more files than we do presently.
It was Parliament's decision, and it's not for me to comment on that decision. It's a matter you might want to take up with someone else.
Mr. Bob Wood: I'm just curious. There's another thing that's kind of interesting in this report, and maybe you could comment on it. The report notes that the Office of the CSE Commissioner received no complaints or concerns during the 2002-03 period, and I have a couple of questions on that. Who would file a complaint? If you don't have any--
Right Hon. Antonio Lamer: Excuse me, Mr. Chairman. I gave my ears to my country in the artillery--
Some hon. members: Oh, oh!
Right Hon. Antonio Lamer: --and I'd appreciate it--
Mr. Bob Wood: You want me to speak up; is that what you're saying?
Right Hon. Antonio Lamer: Yes, because I have only two ears, anyway.
Mr. Bob Wood: I just find it odd that the Office of the CSE Commissioner received no complaints or concerns during the 2002-03 period.
Right Hon. Antonio Lamer: Well, that's not surprising, and I'll tell you why.
Mr. Bob Wood: Please do.
Right Hon. Antonio Lamer: It is a foreign intelligence agency. It does not, like CSIS, deal with Canadians and intercept conversations of Canadians through warrants, issued by Federal Court judges, designated for that purpose. CSIS people deal on a daily basis with our citizens and our residents; CSE does not. CSE deals with foreign countries. If CSE got caught listening in on country X communicating with country Y, I would be highly surprised if the two countries were to come and lay a complaint with me if they found out. On the other hand, it's quite understandable that if we were targeting Canadian citizens, we would be more likely to have citizens laying complaints, whether those complaints were well founded or not.
Maybe I can use an example. Say I'm a detective sergeant in charge of the computer theft squad. My brother, who's in the police with me, is a patrol officer, and on Friday nights he answers the calls for the brawls at the local watering hole. He's much more exposed to losing his temper and finding himself charged with brutality or charged with having overdone it in arresting people, while I'm not involved in arresting people and that. That's the difference. CSE is only indirectly involved, and it's not a frequent occurrence. It targets. The law says the target is foreign, and the foreign country is not going to complain to a Canadian commissioner. It's not going to lay a complaint saying, would you please handle a complaint for us, a foreign country? They deal with the matter differently, depending on how they deal with those matters in those countries.
Mr. Bob Wood: Who would lay a complaint? Would you ever get a complaint?
º (1620)
Right Hon. Antonio Lamer: I'd be very surprised if a foreign country laid a complaint with me now. Where there could be a complaint is when a ministerial authorization is needed because there is a Canadian citizen involved on one end. The primary target must always be foreign, but it might well be that a Canadian citizen is involved. Then there could be a complaint that CSE did not obtain a ministerial authorization.
Let me give you an example. There are two ways in which...there are three ways. One--I can mention it later on--is section 16, when CSE assists CSIS. CSE has an obligation to assist CSIS with its technology, and CSIS has the responsibility and lead role there. What I'm talking about is when a Canadian citizen gets involved in one of two ways, either following a ministerial authorization or by accident.
Let me use an example again. A person has immigrated to Canada and has become a Canadian citizen. He comes from a country that is not too friendly to us, and we're listening in on what this country is chattering about with other countries. He phones his father, who works in the government, and we're listening in on it. We have a Canadian citizen's conversation that's being listened in on. He phones his father and says he's getting married, asks if the father is going to come to the marriage, and so on and so forth. It's a private conversation and is of no interest to us; it's by accident we have listened in on a private conversation.
That is destroyed, and I believe it is destroyed mechanically. Don't ask me about the technology. All I know is that in some form or fashion there's some machine that does something to that conversation, the result of which is that no human ear gets to hear it--apart from the father's.
º (1625)
The Chair: Thank you very much for that.
Mr. Wood, thank you.
Mr. Blaikie, seven minutes, please.
Hon. Bill Blaikie (Winnipeg—Transcona, NDP): Thank you. And thank you, Justice Lamer, for your report.
There are just a couple of things. In your statement you say that it is your responsibility to inform the Minister of National Defence and the Attorney General of Canada of any activity of CSE that you believe may not be in compliance with the law, and you talk about your annual report. Is it in your report? I haven't actually read the report, so I'm not sure--forgive my ignorance if it's obvious--but do you report these kinds of things that may not be in compliance with the law in that report to Parliament? My hunch is that you probably do it somewhere else.
Right Hon. Antonio Lamer: If you read my statement, you'll see I referred to the fact that there are certain matters that go to the minister that don't go into the annual report.
Hon. Bill Blaikie: So these are the classified reports?
Right Hon. Antonio Lamer: You can't run a business like that if you're going to start putting in an annual report who we've intercepted over the last year and our successes or failures.
Hon. Bill Blaikie: I understand you couldn't put details in, but I wondered whether you comment on the frequency of non-compliance or anything like that.
Right Hon. Antonio Lamer: Oh, if there's non-compliance, then it goes to the Attorney General and the Minister of National Defence.
Hon. Bill Blaikie: Is there any place where people like members of Parliament or this committee could get an impression--perhaps just by way of my question--as to how often you find CSE is not in compliance with the law? Is this an infrequent thing or is it something that...?
Right Hon. Antonio Lamer: I'm informed by Ms. Weeks that nothing has ever been reported to the Attorney General--
Hon. Bill Blaikie: By your office.
Right Hon. Antonio Lamer: That's correct.
Hon. Bill Blaikie: All right.
You also mentioned Bill C-14 and some concern you had that it mandated other departments to do without the kind of oversight you apply to the Department of National Defence. Could you expand on that concern?
Right Hon. Antonio Lamer: Bill C-7 wants to give to the commissioner the responsibility of overseeing the legality of the methods used to protect our communications system in DND. Bill C-14 will give to the deputy heads of all departments, including DND, the authority necessary to protect our communications system.
All I'm saying is why ask the commissioner to do for DND what the deputy head of DND can do--as well as the deputy head of Agriculture, Industry, or whatever? In other words, why single out DND for me, while all others...? It's not just DND; there's External Affairs--
º (1630)
Hon. Bill Blaikie: Are you saying this is an unnecessary duplication, or is it a case of a certain kind of oversight being provided to DND that isn't being provided elsewhere?
Right Hon. Antonio Lamer: It's a duplication, because once it's in place the deputy head can do it without going through--
Hon. Bill Blaikie: But wouldn't that deputy head, like every other department deputy head, have a bit of a conflict? It would be sort of self-regulation, whereas you wouldn't be self-regulating; you'd be regulating them or examining them. So these other departments wouldn't have the same kind of oversight, even if they were given the same powers and responsibilities as DND had to live under. That's my point.
Right Hon. Antonio Lamer: Well, I didn't draft Bill C-14.
Hon. Bill Blaikie: I know you didn't draft it, but I'm just trying to get at the implications of what you're saying.
Right Hon. Antonio Lamer: I'm just saying that if Bill C-14 is enacted, there will be redundancy between Bill C-14 and Bill C-7 with regard to the Department of National Defence.
Hon. Bill Blaikie: There'll either be redundancy or a special burden on DND--
Right Hon. Antonio Lamer: It will also create a terrible problem, because it will suddenly dump on us a tremendous amount of work that will require the setting up of a huge organization. If that's what Parliament wants, I have no objection. It's none of my business, except as a taxpayer or a citizen.
Hon. Bill Blaikie: Justice Lamer has learned well over the years as a Supreme Court judge to defer to the role of Parliament. I wish everyone were so deferential.
The Chair: Thank you very much, Mr. Blaikie. That's great.
Now we'll start a second round of five-minute questions. Mrs. Gallant.
Mrs. Cheryl Gallant (Renfrew—Nipissing—Pembroke, CPC): Thank you, Mr. Chairman, and thanks to the Right Honourable Lamer.
Would you please state the criteria that must be met in order for the Communications Security Establishment to lawfully intercept the private communications of Canadians?
Right Hon. Antonio Lamer: The CSE is specifically told that it can't.
Mrs. Cheryl Gallant: Through the chairman to the witness, there are certain circumstances under which that is permitted, as was explained to us by Mr. Coulter.
Right Hon. Antonio Lamer: Yes.
Mrs. Cheryl Gallant: Now, your role is to make sure those criteria are being met when those interceptions are made.
Right Hon. Antonio Lamer: There are two situations. One I referred to in response to a question by Mr. Wood. I had said that I'd get to section 16 later on, and when I was answering him, I could see you frown. I think that at that moment you were already getting ready for this question, which I welcome very much. It took me a while to get a hold of this, because it is....
If CSE, having targeted a foreign country, has to listen in to the conversations of a Canadian citizen, it must then go to the Minister of National Defence to get a ministerial authorization. If it gets the authorization, having targeted a foreign country, then it may listen to a Canadian incidentally. It cannot target a Canadian. You must target a foreigner, and then only if a Canadian gets involved with that foreign target can you, with ministerial authorization, intercept that conversation.
The second situation.... Under section 16, I refer to the fact that CSE has the duty to assist other agencies, such as law enforcement agencies and CSIS, which does not have the technology CSE has. It's very far from having it. The CSE is a very highly sophisticated organization full of scientists and mathematicians. I think they have about 20 mathematicians...?
º (1635)
Ms. Joanne Weeks: I don't know.
Right Hon. Antonio Lamer: I don't know. Anyway, they're full of PhDs. There are more PhDs in the CSE than there are in a university.
So CSE has an obligation to assist CSIS. CSIS gets a warrant from a Federal Court judge who is designated as able to give those kinds of warrants, and the authorization asks for the assistance of the CSE and the role of CSE. In other words, the authorization given by the judge following an affidavit will set out the purpose, and so on and so forth. The CSE will then assist CSIS in intercepting conversations of Canadians.
So in the one case, it's a ministerial authorization, because CSIS is not in the picture and it's a foreign-targeted operation by the CSE. The other one is a Canadian-targeted operation by CSIS, where CSE doesn't have the lead role, but is assisting. It's lending its hardware, if you want, and its technology, its knowledge, and is operating this technology for CSIS. Those are the two occasions--except in my example, by accident--where CSE gets involved with Canadian citizens, or with people in Canada, not just Canadian citizens.
The Chair: Thank you very much, Mrs. Gallant.
Mr. O'Reilly, for five minutes.
Mr. John O'Reilly (Haliburton—Victoria—Brock, Lib.): Thank you very much, Mr. Chairman.
Thank you very much for appearing. I'm not sure how to address you.
Right Hon. Antonio Lamer: I'm no longer a judge.
Mr. John O'Reilly: The red robes still come to mind, and I think I have to be very careful.
º (1640)
Right Hon. Antonio Lamer: Be nice.
Some hon. members: Oh, oh!
Mr. John O'Reilly: Yes, you can always be assured that I'll be nice.
I sat as co-chair part of the time on Bill C-17. Under Bill C-17, I guess I'm looking for your opinion on the....
I think there were 24 acts of Parliament affected by Bill C-17. So whenever you have multiple agencies and departments involved.... I'm not sure if you've looked at that or, in your own opinion, think that it should be reviewed, because some of the evidence that was given during that hearing, as we have come to find out, may or may not have been very accurate. I think judgments were made on the evidence as it was presented, and as the witnesses presented it, to come to the conclusion that Bill C-17 was an act that was certainly necessary. But I always thought there should be a review process.
You talk about intercepting foreign communications. If you deal with the ships in the St. Lawrence Seaway, for instance, we're not sure who would actually be in charge, whether it would be under Fisheries and Oceans, or DND, or the OPP, or the RCMP, or the Canadian Coast Guard. There are so many forces involved there that I don't know who would be responsible for intercepting communications in that particular area, because you have so many branches of authority looking after that area.
So I wondered if you had given any thought—
Right Hon. Antonio Lamer: I'm sorry...?
Mr. John O'Reilly: I was in the artillery, too. I was hoping that I spoke loud enough.
Right Hon. Antonio Lamer: Well, Bill C-17 is now Bill C-7. To begin with, it would be pretentious on my part and, I think, Mr. Chairman, improper to start giving opinions on whether the legislation should be this or that. I will take the legislation that Parliament gives me.
Mr. John O'Reilly: Well, I thought I'd try.
Right Hon. Antonio Lamer: I'll abide by it and I'll apply it. I don't think it was realized at the time that, by singling out the Department of National Defence, there was going to be an overlap between the minister and the deputy.
The purpose of that legislation is to protect; it's not to intercept for the purpose of gathering information. It's to intercept to ensure that our telecommunications are being used for government purposes. It's to protect against any invasion of our telecommunications. As we can see, people are sending in viruses and that. That's what it's about.
It is not, in my view, an intelligence-gathering operation. It's the same kind of protection that GM has for its computers. The whole idea is that if one naval officer was using it to have a look at some porn, it would be an improper use of the communications system of that government department. I think that was the purpose.
To single out National Defence on what could be done through going to the minister and all that, it can be done by the deputy minister. There's no difference between National Defence, in that regard, and External Affairs. It's more of a protective approach. The purpose is to protect the system, not to use the system to gather information.
The Chair: Thank you.
Thank you, Mr. O'Reilly.
[Translation]
You have five minutes, Mr. Bachand.
Mr. Claude Bachand: The chairman of the committee spoke earlier about your reports to the minister, which were tabled in Parliament, and which state whether the CSE complied with the act.
However, in the document defining the Communication Security Establishment, we see that the commissioner, that is you, also undertakes an annual series of reviews of CSE activities, about which he also reports to the minister. Since these reviews contain classified information, these reports are not tabled in Parliament. You mentioned in your presentation that you have done five reports. I imagine they would fall into this category and that consequently no one can get them, except the minister. Is that correct?
º (1645)
Right Hon. Antonio Lamer: I cannot answer that question.
Mr. Claude Bachand: Why not?
Right Hon. Antonio Lamer: Because you passed legislation that would send me to jail for 14 years if I answer it.
Mr. Claude Bachand: Perhaps you could tell them to send me to jail, since I'm the one who asked you the question.
Right Hon. Antonio Lamer: You wanted me to recuse myself in Saint-Jean-sur-Richelieu and now you want me to go to jail!
Mr. Claude Bachand: I would like to read you the following passage:
| The commissioner's mandate is to review the activities of CSE to ensure they are in compliance with the laws of Canada. |
That is what you said.
| He has access to all CSE information, with the exception of Cabinet documents, and submits an annual report to the Minister of Defence, who tables this report in Parliament. |
There is also reference to the fact that Mr. Bisson, as commissioner, submitted seven reports and there was never any violation of Canadian law. However, the other paragraph reads as follows:
| The commissioner also undertakes a series of reviews... |
In your presentation, you spoke about this as follows:
| I have also submitted five classified reports... |
I would like to know whether these are the same reports. Are you referring to the paragraph I mentioned, where you state that you undertook a series of reviews and tabled a report with the minister, but that this report is not accessible to us? Is that correct?
Right Hon. Antonio Lamer: These reports are classified.
Mr. Claude Bachand: I see.
CSE has been given another mandate as well—to collect communications from a legitimate foreign target located outside Canada if these communications are being sent to Canada or originate in Canada.
I would like to know whether in your opinion intercepting conversations between the embassy of a country in Ottawa and its consulate in Montreal, for example, is authorized under the legislation.
Right Hon. Antonio Lamer: That is authorized under the legislation, but not for CSE.
Mr. Claude Bachand: Is it CSIS that can do that, not CSE?
Right Hon. Antonio Lamer: That is correct. CSE deals with communications outside the country.
Mr. Claude Bachand: But if there is a conversation between an individual in Iran and the Iranian Embassy in Ottawa, what do you do?
Right Hon. Antonio Lamer: If we are targeting the Iranian, that is all right, because we have a foreign target. We cannot target communications within the country, but I would emphasize that CSIS can. In order to do that, CSIS must go to a designated judge and get a warrant for this purpose.
Mr. Claude Bachand: Precisely, we are getting to the heart of the matter. I have one last question on this. You spoke about legality earlier, and you said that you did not have a mandate, for example, to investigate CSE's effectiveness.
Right Hon. Antonio Lamer: They can be ineffective, provided they do so legally.
Mr. Claude Bachand: Fine.
Right Hon. Antonio Lamer: That is not my business.
Mr. Claude Bachand: I would like your opinion on a matter. Effectiveness is nonetheless an important thing for a government organization. I understand that it is not your business, but a number of individuals have been calling for a transfer of responsibilities from the CSE to CSIS, because the latter does have a commissioner who concerns himself not just with legality, but also with effectiveness. He ensures that everything is done in compliance with the laws of Canada.
Might we not consider this approach in order to focus a little more on the matter of effectiveness?
Right Hon. Antonio Lamer: I have two answers to the question, Mr. Chairman.
First, the Auditor General deals with the efficiency of CSE. If taxpayers are not getting value for money, it is up to the Auditor General to look into this and to report on the situation. So, efficiency is already covered by the Auditor General.
Now, there is a very fundamental difference between CSE and CSIS in the nature of their work and the profile of their staff. The profile is different, and the activity in question is different. They would have to take staff from the commissioner's office and put them with the others. The activity is so different that Parliament in its wisdom—and I do think this was wise—thought it would be preferable to separate these duties.
Generally speaking, it is wise for a country not to concentrate all activities of this nature under one minister. We discovered this with Fouché during the French Revolution. The French learned their lesson so well that today, they have broken down their police force into five groups that report to five different ministers, including the president. The CRS reports to the president, the gendarmerie reports to national defence, the judicial police report to the Minister of Justice, and so on.
In my opinion, there is a reason for this political prudence in not concentrating all surveillance and control powers of this type under a single minister. That is a personal comment. As a citizen, I find it reassuring that the responsibilities are divided.
º (1650)
[English]
The Chair: Thank you, Mr. Bachand.
I'd like to have this clarified, and then we'll continue with the questions. Following up on Mr. Bachand's question, is an embassy in Ottawa considered to be a foreign target? In other words, can we listen in on country X officials in their embassy in Ottawa because it is considered to be a foreign target?
Right Hon. Antonio Lamer: It's foreign territory. If you go into the American embassy, you're in the United States.
The Chair: That was my understanding, and I wanted to have you confirm that.
Right Hon. Antonio Lamer: I hope I'm right. I've never really worried about that. I think that's the case.
The Chair: I appreciate that. If you ever come to another conclusion on that, I'd appreciate it if you'd let us know.
Right Hon. Antonio Lamer: I'm pretty sure about that.
The Chair: It seem logical.
Mr. Claude Bachand: I thought I heard that CSIS is in charge of listening in on the embassies. You're trying to say that it's foreign territory.
The Chair: I'm just asking the question.
Right Hon. Antonio Lamer: It could be Parliament's desire to amend the act to say that with regard to embassies, because it is foreign territory within Canada's boundaries, CSE could do unto that country through its embassy in Canada what it's unable to do to that country outside of Canada. There's nothing unthinkable about that. But that's not the case. The case is that within the four corners of Canada, the message to CSE is don't touch.
º (1655)
The Chair: Thank you for the clarification.
Mr. Calder, for five minutes.
Mr. Murray Calder (Dufferin—Peel—Wellington—Grey, Lib.): Thank you very much, Mr. Chair.
With the Anti-terrorism Act, CSE is permitted to intercept private communications entering and leaving Canada with the authorization of the Minister of National Defence. How do you get the information on what you should be monitoring?
Right Hon. Antonio Lamer: In my opening remarks I referred to the fact that we hired on in a punctual way the experts we needed, depending on what we're looking for. My personnel are all people who have been there in some form or fashion. They all come from the intelligence community. They know where the bugs are, if there are bugs, or they know where to look. I don't know, but they do. As I said, it's a sampling system.
Mr. Murray Calder: CSE is randomly taking little bites, and if you happen to find something juicy, you then go to the minister and say we should be monitoring this on a regular basis.
Right Hon. Antonio Lamer: No.
Mr. Murray Calder: Then how do you find that information?
Right Hon. Antonio Lamer: We sample CSE activities and, if we discover something unlawful, report to the minister and to the Attorney General.
There's another aspect that has not been mentioned, and I didn't mention it on purpose because it's a grey area to a certain degree. We're in the course of discussions.... We're not in a confrontational situation. Even though I'm there to oversee them, I'm not there like the bogeyman. I believe very much in preventive action.
If our people see a situation that is not a violation of the law but is a situation that will lend itself to the law being broken more easily than not by employees of CSE, then I'm of the view, which is not necessarily shared by all—I'm now meaning within my organization—that rather than wait until something happens such that an offence is committed by an employee of CSE, we should report the matter, so that corrective measures may be taken to plug the hole so that it not happen.
There's ongoing discussion about this and about the extent to which we should be doing this. I can't elaborate much more on that.
Mr. Murray Calder: I can understand that, because—
Right Hon. Antonio Lamer: I could give you an example, but there again, I'd be in violation of the act.
» (1700)
Mr. Murray Calder: Yes. I'm not a lawyer by trade, but I know there are laws against tapping and bugging people's phones and so on without their knowledge, and as to whether evidence and/or information would be admissible if it's done that way.
One question I would like to know, though, is what type of information would constitute the minister giving authorization to monitor? Can you give me an example of what would constitute that?
Right Hon. Antonio Lamer: To monitor what?
Mr. Murray Calder: That the minister gives his authorization to monitor conversations with—I don't know—a company, a business, or whatever, because you found that something isn't right.
Right Hon. Antonio Lamer: We don't have that power. The minister doesn't have the power. We must first target a foreign.... This is why I mentioned it. I said it's very important that we start outside of Canada. Most of the time we stay outside of Canada, but sometimes somebody in Canada gets involved in what we're doing—I say “what we're doing”; I'm talking as a Canadian and not as a commissioner—what our CSE people are doing in or to that foreign country, and a Canadian citizen gets involved. Right away, unless it's one of those accidents I was referring to, you have to go to the minister for his authorization. It all depends on the nature of what's going on. The minister exercises his or her judgment, weighing, I imagine, the cost of the invasion of privacy as against the value of the information that would be obtained.
The Chair: Is that clear, then, Murray?
Mr. Murray Calder: Yes.
The Chair: Thank you very much.
Mrs. Gallant, you have five minutes.
Mrs. Cheryl Gallant: Thank you, Mr. Chairman.
If I have time left over, I would like to share it with Mrs. Wayne.
The Chair: We have lots of time.
Mrs. Cheryl Gallant: In the example you gave about an inadvertent interception between the father who was in an unfriendly country speaking to his Canadian son in government, how is it determined whether or not the conversation is personal and non-threatening? You mentioned that unless the conversation is determined to be a threat to security, no human ear hears it.
Right Hon. Antonio Lamer: It can only be kept if the conversation reveals itself as being related to national security.
Mrs. Cheryl Gallant: Who determines that, because of course a terrorist—
Right Hon. Antonio Lamer: Who determines it? It's the people who are in the project that's ongoing—the people who are listening in. It's what they hear, and they exercise their judgment.
Now, if one of my people barges in at a certain moment and says, “By the way, show us that conversation you've kept because you are of the view that it was related to national security”, and it turns out that it's not and is a blatant invasion of privacy, then that's a violation, and bingo, in goes a report to the minister. Depending on the nature of the violation, it will either go to the Minister of National Defence or it'll go to the Minister of Justice if there is cause for prosecution.
Mrs. Cheryl Gallant: If I understand the process correctly, this conversation is being listened in on; it sounds as though it's of a personal nature; if they suspect that maybe the father and son are speaking in code about “the wedding” when really the wedding is an event, is it at that point they would go to the minister for permission to continue listening to that conversation?
I'm just trying to understand what steps there are in the sequence and the chronology of what happens when.
» (1705)
Right Hon. Antonio Lamer: I guess it depends a little bit on the person who's phoning. If there is, I would imagine, cause to believe that they're talking in code—in the example I gave, if there's really a marriage that's going to be taking place.... If people look into the matter and there's no church reserved, if it's a church marriage, or if there are no invitations sent out for a marriage, that would be an indication that maybe they're talking in code, because there is no marriage.
Ms. Weeks, maybe, Mr. Chairman....
The Chair: Sure.
Ms. Joanne Weeks: May I just add, Mr. Chairman, a couple of points of clarification?
The Chair: Yes, please.
Ms. Joanne Weeks: The ministerial authorization comes first with permission under four criteria that are detailed in the act under which a targeted foreign communication, if it comes into the country, may be kept. One of the big concerns right now, as I understand it, is if you're talking about a specific target who is known to use terms like “weddings” and “funerals” as part and parcel of a code to disguise a potential terrorist activity, these communications have to be scrutinized particularly carefully, and the decision is taken. If in any way the communication could be deemed to be in the national interest to retain on grounds of national security, it is retained.
But the threshold is, could this message or this personal communication be viewed to be, in any measure, grounds for national security concern? Then it is retained.
Mrs. Cheryl Gallant: You mentioned four criteria and the commissioner mentioned two criteria, are we talking about the same criteria broken down into different parts?
Ms. Joanne Weeks: No, the commissioner was quite right in what he said, obviously, that there are criteria that the Minister of National Defence has to take into account in issuing an authorization, and they're described in the legislation.
Mrs. Cheryl Gallant: Would you, for our benefit right now, describe those criteria.
Ms. Joanne Weeks: It's section 273.65, part I, of the National Defence Act that legislates both CSE and the commissioner's office. The conditions are found in subsection (2):
| The Minister may only issue an authorization under subsection (1) if satisfied that |
| (a) the interception will be directed at foreign entities located outside Canada; |
| (b) the information to be obtained could not reasonably be obtained by other means; |
| (c) the expected foreign intelligence value of the information that would be derived from the interception justifies it; and |
| (d) 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. |
The Chair: Thank you very much.
I know there are still some colleagues with questions and I want to give Mr. Price a chance as well here towards the end.
Mrs. Wayne, I know, has some questions. You're okay, Elsie?
Mrs. Elsie Wayne: I'm fine, thanks.
The Chair: Claude, do you have a couple more questions?
I'll go to Mr. Bachand and then I'll go to Mr. Price.
[Translation]
Mr. Claude Bachand: Earlier, a question was raised about the commissioner's mandate, which was changed in 1999 to allow him to receive complaints about the CSE. In answering this question, you gave some examples such as the one involving two countries which, if they found out that they had had their communications intercepted, would probably not complain to you. I understand that.
Let us now talk about the issue of CSE employees. I am referring to Bill C-25, which was just passed at second reading this afternoon, and which is about whistleblowers. This bill excludes the Canadian Forces and CSE as well. If someone witnesses a reprehensible act, do you have the authority to hear from this individual and try to correct the situation?
» (1710)
Right Hon. Antonio Lamer: Could you clarify your question, please?
Mr. Claude Bachand: This afternoon, Bill C-25 was passed at second reading. It is also known as the whistleblower's bill, because it provides protection for them. However, to my knowledge, the Canadian Armed Forces and CSE are excluded from Bill C-25. Earlier, you used the expression “between countries”. If a CSE employee witnesses a reprehensible act, can he come to you, the commissioner, to try to have the situation corrected?
Right Hon. Antonio Lamer: Yes.
Mr. Claude Bachand: Thank you. I have no further questions.
[English]
The Chair: Thank you.
Mrs. Gallant, you have a couple more questions, and then I'll go to Mr. Price.
Mrs. Cheryl Gallant: Yes, Mr. Chairman.
In your annual report 2002-03, you're now directed specifically to review CSE activities carried out under ministerial authorization to ensure that they are authorized, but you no longer have a completely free hand in choosing the subjects for review. Do you have any concerns that breaches of law that you're supposed to make sure CSE is following, breaches that you're responsible to report, will go undetected due to the restricted choice you now have in choosing what you are to review?
Right Hon. Antonio Lamer: What restrictions are you referring to?
Mrs. Cheryl Gallant: If you look at page 4, it says:
| The new legislation has introduced some important changes to my mandate. As described above, the Minister of National Defence.... Although I am still required to review CSE's activities generally to ensure that they are in compliance with the law, the legislation also directs me specifically to review CSE activities carried out under a ministerial authorization to ensure they are authorized, and to report annually to the Minister on the review. In other words, I no longer have a completely free hand in choosing subjects for review. |
Given that you no longer have a free hand in choosing your subjects to review, are you concerned at all that breaches, which you are responsible to report, will go undetected?
Right Hon. Antonio Lamer: This says to me that all MAs--ministerial authorizations--I review, and I guess prior to that my predecessor did not have the obligation to review all MAs. In that sense, he says “I no longer have a completely free hand”--a free hand in the negative way. In other words, previously he didn't have to review them all, and now he has to review them all. It was his feeling that his freedom of choice of what he was going to review had been diminished.
I personally welcome it. I'd like to review all MAs. In other words, absent a change to the law, I personally would have wanted to review all MAs.
» (1715)
Mrs. Cheryl Gallant: Thank you for the clarification.
Right Hon. Antonio Lamer: Now I have to.
The Chair: So it's actually an enhanced oversight by your office. Thank you very much for that.
We'll go to Mr. Price now for a special question, Justice Lamer.
Hon. David Price (Compton—Stanstead, Lib.): Thank you very much.
Sir, it's really quite an honour to have you here today. I look at your CV and I see you've been referred today as commissioner, justice, judge, and the right honourable, and I look at the letters after your name that I won't even dare go into. But I also have another title for you that I'm very honoured to salute you by, and that is honorary colonel, which fits right in here.
So I want to go in a little bit of a different direction from the questioning that's been going on. You are also, I believe, the past president of the National Council of Honorary Colonels and Lieutenant Colonels for Canada.
Right Hon. Antonio Lamer: Land forces.
Hon. David Price: Land forces, yes. Those are the ones we're dealing with, you might say.
It just happens that on Thursday General Fitch will be here. I am sure you have met him and have discussed matters with him over the last period of time. I was wondering if you would be willing to maybe give us a little idea of your thoughts on the whole honorary colonel system, or maybe just your thoughts on being an honorary colonel and the implications. And I know you weren't prepared for this in any way.
Right Hon. Antonio Lamer: Mr. Chairman, I'm quite ready to accommodate my friend here.
The Chair: Mr. Price spoke to me. I wanted to make sure that all the colleagues had asked the questions they wanted on why you're here.
Mr. Claude Bachand: He needs unanimous consent.
The Chair: Mr. Bachand will say d'accord for unanimous consent. I see unanimous consent to let Mr. Price ask the question, if you're comfortable in answering.
Right Hon. Antonio Lamer: I am comfortable in answering.
The Chair: It's a perfect segue into our next meeting, actually, and I think the other questions are exhausted.
Hon. David Price: That was my idea. Since we're going to have General Fitch here, I thought, my God, what a wonderful opportunity--
The Chair: So it's a perfect way to segue into that. If you're comfortable, we'd love to hear your thoughts.
Right Hon. Antonio Lamer: Okay.
There has been an evolution within the honoraries system. You have to know a little bit about the history of the honoraries. If we go back even one century, it was expected that certain people would finance regiments. That's why you'll find the Princess Patricia's Canadian Light Infantry.
These people who formed regiments to support their country at times of war were not necessarily military trained. In fact, very few of them were. They'd get a professional soldier to be the lieutenant-colonel, and they would be the colonel of the regiment. The Queen is a colonel of a regiment; the Governor General is a colonel of a regiment of the Foot Guards, the Grenadier Guards, and the Horse Guards. The lieutenant-colonel was the soldier who ran the regiment. That's the history of it. The colonel just paid the stipend to the soldiers and the officers. That's how it worked.
Eventually we ran out of people who wanted to form regiments, and we sort of came to having a more modern army organized by the country. The honourary colonels remained. When I was a young officer, the honourary colonels were people who had a bit of money, and they would help junior officers buy uniforms. When I was a young officer we bought our uniforms, and we couldn't afford them. A lieutenant would get $173 a month, and we couldn't afford to buy our mess kits. It took a year to pay for them, so the honourary colonel would help out. Also the honourary colonel, if it was a reserve unit, would maybe find jobs for people who were out of work, and so on.
Because this idea of people spending lots of money has disappeared, it has changed over my lifespan from the honourary colonel being rich and well-to-do and picking up the bill at the end of the evening or paying for the banquet, the mess dinner, to being a former military person. For example, the honourary lieutenant-colonel of the Governor General's Foot Guards is former Lieutenant-General James Gervais. Today we find that former lieutenant-colonel commandants of regiments become honourary colonels for a couple of years, or four years, and so on.
There are still a few who have no military background at all, but they're disappearing. More and more, the troops like their honoraries to have had a military past.
» (1720)
The honorary colonels will do and say things like this. My regiment is an artillery regiment. I met with the mayor of Montreal and obtained for my regiment the keys to the city. I do, once and a while after a mess dinner, drop a couple of hundred dollars with the mess sergeant and say that anybody under the rank of major--in other words, junior officers--can have a drink à ma santé. And when you get to 200 bucks, they're drunk enough. I've paid enough and they've had enough.
The honorary colonel is responsible for tradition, and he will remind the lieutenant-colonel commandant who would transgress, let's say, from a tradition or let it disappear. I have an example again.
I explained to a lieutenant-colonel who had dropped a tradition that most traditions had a reason to exist, and one of the traditions was that when you walked into the officers' mess, you had to stand at attention before entering the mess. At the right of the door to the mess, there was a table to remind you to take off your headdress, because anybody going into the mess with his headdress had to buy everybody a drink. But there was another much more important reason. It was to underline the fact that the officer was entering the oasis that existed where the president of the mess was the boss and it was no longer the commanding officer of the regiment.
I was a young man in those days. I've seen the president of the mess, who was a captain, say to the lieutenant-colonel commandant of the regiment, “Sir, I think you've had enough to drink. Would you please leave the mess.” And that was it. That has disappeared.
The mess is an officers' oasis, where discipline does not.... You still have respect for your elders, but there is no command and control in the mess except by the president of the mess, who is elected by the officers. It's a tradition that has disappeared in most regiments, but it has been reinstated in my regiment. The lieutenant-colonel wasn't too happy about that, but I told him, “Well, that's just too bad, that's the way it's going to be”.
So the honorary colonels do have that role to play. The honorary colonels and honorary lieutenant-colonels must never interfere in the military aspect of the regiment--that's for the commandant--and they should never undermine the authority of the lieutenant-colonel.
For a while I was president of the committee of the honoraries. Everybody at the table was a former general, and former generals tend to go back.... Having become a general officer means that you no longer have a regiment. You leave your regiment. You're a general officer. You don't even wear the badge of your former regiment. But when they go back, they like to go back as honourary colonels, and they go back to their respective regiments. It's a tradition that hopefully will be maintained, because I think it has its use, except that the honourary colonels need to be....
» (1725)
Well, under my chairmanship.... I had to resign as chairman when I took on the job of revising the military justice system. I just didn't have the time to do the job, so I turned it over to Major-General Reg Lewis, retired, who was the honourary colonel of some regiment in Toronto.
Well, say hello to Fitch for me.
The Chair: Thank you very much, Justice Lamer, for sharing that experience and for being here on the primary topic. It's an honour to have you here as commissioner.
Ms. Weeks, it's a pleasure to have you here as well.
I think that concludes our questions. Colleagues, thank you very much. We'll meet again on Thursday.
This meeting is adjourned.