Appearance before the Senate National Security and Defence Committee on the Review of Canadian security intelligence related services

December 9, 2013
Ottawa, Ontario

Opening Statement by Chantal Bernier
Interim Privacy Commissioner of Canada

(Check against delivery)

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Introduction

Good evening Mister Chair and Members of the Committee.

Thank you very much for your invitation to present our views on the Annual Report of the Security Intelligence Review Committee (SIRC) and the implications upon privacy of information sharing.

Joining me today is Christopher Prince, Strategic Policy Analyst.

I would like to begin by stating that I believe we need a societal debate to recalibrate the rapport between privacy and security.  That debate can only happen with the involvement of Parliament. I would like to congratulate you on holding this detailed study into SIRC’s excellent annual report.

In relation to the report, I will focus my remarks on the accountability structure regarding intelligence activities.

The OPC’s mandate

But first, let me describe the mandate of the Office of the Privacy Commissioner.

Our Office is mandated with overseeing compliance with both the Privacy Act, governing the public sector, and the Personal Information Protection and Electronic Documents Act, governing the private sector.  The Privacy Act covers the personal information practices of Canadian security agencies. 

There are some exceptions that authorize security agencies to collect, use and disclose Canadians’ personal information and to deny individuals from accessing their personal information in certain circumstances.  But these are still subject to review by our Office.   

At the same time, we also note the related mandates fulfilled by the SIRC and the Office of the Commissioner of the Canadian Security Establishment Canada.

It is appropriate that the specialized area of intelligence-gathering come under specialized review.  However, it is a matter of concern that both review bodies that I have just mentioned have expressed reservations in relation to the limits of their mandates.

The SIRC Annual Report and information sharing

I would draw your attention to pages 16 and 17 of the SIRC report which notes that “the once-solitary worlds of Human Intelligence (HUMINT) and Signals Intelligence (SIGINT) have increasingly merged” and that increased collaboration between these domains can result in “erosion of control over the information shared.”

The Honourable Robert Decary made a related observation in his last report noting “where CSEC and CSIS cooperate and conduct joint activities, my office and SIRC do not have an equivalent authority to conduct joint reviews.”

Reviews by both SIRC and the CSE Commissioner point to large-scale ongoing information-sharing between members of the intelligence community that are effectively out of scope for their review – partly because there is some information they cannot readily access from the agencies they oversee and partly because they cannot exchange information on cases with one another. 

These concerns over lack of clarity and control were then echoed very recently in a declassified order by the Federal Court of Canada where Justice Mosley highlighted a serious “lack of candour” by CSIS in failing to disclose information relevant to the Court’s authorization of interceptions to be assisted by CSEC and its partners.

Together, all of these observations point to serious questions regarding the overall governance for accountability of our national security activities, including the massive collection, use and disclosure of Canadians’ personal information both nationally and abroad. 

Oversight in silos

We believe the current Canadian system of intelligence oversight is now proving overly compartmentalized and insulated by statute. 

This seriously undercuts accountability and may threaten privacy.  What we do not want to see is a repeat of events that led to a decade of Commissions of Inquiry in Canada.  Rather, what we need is a better-integrated approach to the review of intelligence and security at the national level. 

Improving accountability for intelligence activities requires broader oversight to ensure compliance and strengthened reporting mechanisms to inform Canadians.

In this regard, my office intends to provide analysis and recommendations for Parliament's consideration in the New Year.

Conclusion

I would leave you with one concluding thought – one picked up in the SIRC report you are studying.

Many in the security or commercial sectors often contend that the right to privacy has vanished.

It is important to dispel that simplistic assertion: the right to privacy is a visceral need, central to personal integrity, and the protection of this right is essential to a free and democratic society.

Respecting this right within the new political and technological framework of intelligence activities is therefore the fundamental question for national security in the 21st century.

In short, as mentioned in the introduction, we believe that, in a new era of networked intelligence and surveillance, characterized, according to SIRC’s report, by the “inevitability of technology interconnection”, Canada therefore needs a networked approach to oversight and review.

Thank you and I look forward to your questions.