Friday, December 15, 2006

In the news: Arar Commission

The second and final report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the "Arar Commission") was released on December 12th. (More about the Arar scandal here.) Entitled A New Review Mechanism for the RCMP's National Security Activities (636-page PDF file), the report focuses on oversight mechanisms for RCMP intelligence activities. The other elements of the Canadian intelligence community are also discussed, including sections on CSE (pp. 143-147), CFIOG (pp. 148-149), and the CSE Commissioner (pp. 281-284).

CSE and the Commissioner are also discussed in several other parts of the report. One interesting section (p. 443) notes, for example, that
Under the National Defence Act, ministerial authorization may be granted [to intercept the private communications of Canadians and persons within Canada] where the Minister of National Defence is satisfied of the following:

(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.

It goes on to explain, however, that
The CSE Commissioner scrutinizes the legality of the CSE’s interception of communications pursuant to ministerial authorizations, ensuring that the intercepts comply with the terms of the authorizations. However, the Commissioner does not review the Minister’s decision to authorize interception. Thus, the authorization is not reviewed for compliance with the criteria set out in section 273.65(2) of the National Defence Act or in the Charter.

Might this be the basis of the disagreement that the previous CSE Commissioner had with the Minister of National Defence (blogged about here)? Don't know; just asking. Whatever happened to that disagreement anyway? Is the new Commissioner pursuing it?

Back in 2005, the Privacy Commissioner recommended that the National Defence Act be amended to require judicial rather than ministerial authorizations for such interceptions and to empower the CSE Commissioner "to ensure not only that intercepts of private conversations have in fact been authorized..., but that the direction itself is authorized by the law and consistent with the Canadian Charter of Rights and Freedoms and the Privacy Act" (Position Statement on the Anti-terrorism Act: Submission of the Office of the Privacy Commissioner of Canada to the Senate Special Committee on the Anti-terrorism Act, 9 May 2005). These recommendations were not acted on.


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