3. Communications Security Establishment and its Monitoring Agency: a. Communications Security Establishment (CSE)
CSE collects electronic communications between two foreign individuals outside of Canada or one foreign individual outside of Canada, speaking with an individual within Canada, where the foreign individual is the target. CSE collects this information to advise the Canadian government on national security threats. It also advises the government on the protection of electronic government information.
Enabling Legislation
Until the passage of the Anti-terrorism Act in 2001, the CSE did not exist pursuant to legislation. Instead it had been created at the discretion of the Minister of National Defence.62 The CSE currently exists pursuant to the National Defence Act and its Regulations. None of the Regulations relate to the CSE.
The Act creates no reporting obligations on the CSE and makes no mention of human rights in national security.
Reports to Parliament and Committee Appearances
There are no publicly available reports from the CSE. 63 However, a review of Hansard revealed one appearance by the head of the CSE before a parliamentary committee in the last 10 years that referenced human rights. In a March 2004 appearance, CSE made a general statement that it abides by the Charter.64
b. Office of the Commissioner of the Communications Security Establishment:
The CSE Commissioner monitors the activities of the CSE. He is responsible for auditing CSE activities for statutory compliance and reporting findings to the Minister. The CSE Commissioner also has jurisdiction to accept, investigate and respond to complaints about the CSE’s activities.
Enabling Legislation
Since 2001, the CSE Commissioner exists under the National Defence Act. None of the Regulations under the Act relate to the CSE Commissioner.
The CSE Commissioner is required to produce an annual report on his activities, which the Minister then lays before Parliament.65 The National Defence Act provides no direction on the contents of such reports.
The Act does not direct the CSE Commissioner to consider human rights. However, the CSE Commissioner is responsible for reviewing CSE’s legal compliance.
Reports to Parliament
The CSE Commissioner reports pursuant to the National Defence Act. In, six of the last 10 reports reviewed, statements on the protection of rights were made.66 For example:
I was able to observe that the policies require CSE employees to conduct their operational activities in strict recognition of, and adherence to, federal legislation governing the protection of the rights, privacy and freedoms of Canadians.67
Beyond these statements, none of the reports make reference to human rights issues.
Committee Appearances
The CSE Commissioner also appears before parliamentary committees. In these appearances, the only human rights related statements were general statements on rights. For example, Commissioner Claude Bisson made the following statement during his appearance on October 22, 2001:
The drafters of this bill were required to take into account the critical balance between the needs of the state to collect information to protect its citizens, and the individual rights of those citizens to privacy and freedom. I know that one of the stated objectives of this committee is to explore the protection of human rights and civil liberties in the application of this proposed act, and I wish you well in your deliberations.68
4. Auditor General:
The Auditor General audits the activities of all of the national security agencies and their monitors in relation to their use of financial resources. Unlike the other monitoring agencies, the Auditor General's oversight is limited to the use of financial resources and not to the organizations' general activities.69
Enabling Legislation
The Auditor General exists pursuant to the Auditor General Act and its one Regulation. The Act identifies the Auditor General as the auditor of the federal government's financial records. The Auditor General examines the financial statements required of the government as a whole under the FAA, and it reports on whether these financial statements are in accordance with generally accepted accounting practices ("GAAP Audit Report").
The Act also requires the Auditor General to submit at least one annual report to Parliament on its work as well as governmental and departmental compliance in conducting audits. These reports are to call attention to anything "of significance and of a nature that should be brought to the attention of the House of Commons", including money spent inefficiently or for purposes for which it was not designated ("Annual Reports").70
The Act does not direct the Auditor General to consider human rights or to report on human rights issues.
Reports to Parliament and Committee Appearances
The Annual Reports, Reports on Plans and Priorities and Departmental Performance Reports of the Auditor General were reviewed over the last 10 years, but not the GAAP Audit Reports. All appearances by representatives of the Auditor General’s office before the parliamentary committees in the last 10 years were also reviewed. These reports and committee appearances were examined for references to human rights in the context of national security. None of them included any reference to human rights in national security.