The defence minister’s reasons for allowing Canada’s foreign signals intelligence agency to perform otherwise illegal activities were sometimes “insufficient,” according to the new intelligence commissioner in a first-of-its-kind report.
Jean-Pierre Plouffe, the man who helps review the activities of Canada’s two spy agencies, said the linkages used by the minister to justify his conclusions were sometimes lacking, although in the end the commissioner ultimately gave spying requests the green light.
While many of the details about what clandestine activities actually involved are omitted from the report, it offers a glimpse into the back-and-fourth in deciding when Canada’s cyber spies can intercept private communications.
“In some instances, the [information commissioner] determined that the ministerial conclusions were insufficient or non-existent,” reads the report, tabled in the House of Commons this week.
The position of intelligence commissioner is relatively new to Canada and was created to offer an independent, quasi-judicial review of the justification used to clear intelligence agencies’ of otherwise illegal activity.
The position was born out of the Liberal’s national security overhaul legislation in 2019. The first report looked at a small window: just nine authorization requests from Aug. 1, 2019 to the end of that year.
Minister of National Defence Harjit Sajjan is seen during a news conference on May 7, 2020 in Ottawa. The intelligence commissioner reviews the conclusions on why the defence minister issues authorization to spy on selected targets. (Adrian Wyld/Canadian Press)
The Communications Security Establishment’s mandate allows it to collect signals intelligence on foreign targets — including information about the “capabilities, intentions or activities” of actors — but they can’t spy on Canadians or contravene the Charter.
Due to the line of work, the agency sometimes performs acts that would otherwise break the law. The agency then needs a “foreign intelligence authorization” from the minister, in this case Defence Minister Harjit Sajjan, before moving ahead.
Those activities are typically “offences in the Criminal Code, such as the interception of private communications, or the conduct of certain activities necessary to enable the acquisition of information for providing foreign intelligence or to keep an activity covert,” notes the report, a first of its kind for the new office.
With a special authorization in hand, CSE can then, despite Canadian law or laws of any foreign states, carry out “any activity specified in the authorization to further its foreign intelligence mandate.”
The intelligence commissioner, a retired superior court judge, is responsible for reviewing the reasons behind why the defence minister issued this kind of special authorization.
Plouffe’s report found that while all of the minister’s authorizations for CSE’s activities, five during the short time period, were reasonable, there were issues in the applications.
“The intelligence commissioner found some inconsistencies in the application records for foreign intelligence authorizations. Notably, the minister’s conclusions did not address certain authorized activities and some authorized activities were not supported by facts in the chief of CSE’s written application,” it reads.
“In addition, a condition imposed by the minister in one of the authorizations was neither addressed in his conclusions nor rationalized elsewhere in the application record.”
The 23-page report did not include details of the activities or what the intelligence commissioner felt was missing from the original applications.
CSE says process ‘rigorous’
CSE also has the authority to launch certain cybersecurity activities to help protect the government’s electronic information and infrastructure from cyber threats. It offers similar protections to critical infrastructure including, energy, finance, and information and communications technology.
If while defending that infrastructure from disruption the agency feels that it needs to intercept private communications, it requires a special cybersecurity authorization.
Plouffe found two inconsistencies in the application records for that special approval.
“Notably, an activity was not explicitly addressed in the minister’s conclusions despite being described in the chief of CSE’s application,” it reads.
“Further, a condition imposed by the minister in his authorization was neither explained in his conclusions nor supported by information found in the application record.”
It then fell to Plouffe to review the evidence to supplement the authorization.
Intelligence Commissioner Jean-Pierre Plouffe previously served as a superior court judge and as the watchdog for CSE. (Adrian Wyld/Canadian Press)
Sajjan said the CSE will take the commissioner’s comments into account for future ministerial authorization.
“We will continue to work with the intelligence commissioner to ensure that CSE continues to live up to the high expectations that all Canadians expect,” he said in a statement.
“The work that he does provides transparency and is an important part of the oversight of the robust system of checks and balances that our government has put in to place.”
A spokesperson for CSE said the agency has already addressed the commissioner’s comments.
“It was noted that there were some opportunities in the future for additional information to be included to supplement the minister’s conclusions. In each case, the IC recognized the minister’s expertise in authorizing these activities and approved all five authorizations without amendment,” said Evan Koronewski.
“The process of drafting ministerial authorizations is rigorous. This process involves extensive consultations with key stakeholders across CSE, including operational areas, compliance, and legal services to ensure that all activities and classes of activities are described accurately and in sufficient detail.”
Commissioner also looked at CSIS
The review also looked at the datasets — electronic archives of information — the Canadian Security Intelligence Service can maintain.
CSIS has the authority to “collect, by investigation or otherwise,” analyze and retain information regarding activities that could pose a threat to national security.
The commissioner reviewed four authorizations and found two were reasonable.
In one case, he determined that the minister’s decision to authorize certain unlawful conduct by CSIS to carry out its intelligence collection mandate was unreasonable. In another case, he only partially approved the conduct. In those two cases, CSIS will have to resubmit its paperwork to the commissioner.
A spokesperson for Public Safety Minister Bill Blair said the intelligence commissioner’s recommendations have been given “careful consideration.”
‘The dataset and justification frameworks provide comprehensive authorities to balance the Canadian Security Intelligence Service’s operational needs with its obligation to protect the private information of Canadians,” said Mary-Liz Power.
“The results of this report … represent additional layers of accountability and protection for Canadians and their information.”
OTTAWA – The New Democrats confirmed Thursday they won’t help Pierre Poilievre’s Conservatives topple the government next week, and intend to join the Bloc Québécois in blocking the Tories’ non-confidence motion.
The planned votes from the Bloc and the New Democrats eliminate the possibility of a snap election, buying the Liberals more time to govern after a raucous start to the fall sitting of Parliament.
Poilievre issued a challenge to NDP Leader Jagmeet Singh earlier this week when he announced he will put forward a motion that simply states that the House has no confidence in the government or the prime minister.
If it were to pass, it would likely mean Canadians would be heading to the polls, but Singh said Thursday he’s not going to let Poilievre tell him what to do.
Voting against the Conservative motion doesn’t mean the NDP support the Liberals, said Singh, who pulled out of his political pact with Prime Minister Justin Trudeau a few weeks ago.
“I stand by my words, Trudeau has let you down,” Singh said in the foyer outside of the House of Commons Thursday.
“Trudeau has let you down and does not deserve another chance.”
Canadians will have to make that choice at the ballot box, Singh said, but he will make a decision about whether to help trigger that election on a vote-by-vote basis in the House.
The Conservatives mocked the NDP during Question Period for saying they had “ripped up” the deal to support the Liberals, despite plans to vote to keep them in power.
Poilievre accused Singh of pretending to pull out of the deal to sway voters in a federal byelection in Winnipeg, where the NDP was defending its long-held seat against the Conservatives.
“Once the votes were counted, he betrayed them again. He’s a fake, a phoney and fraud. How can anyone ever believe what the sellout NDP leader says in the future?” Poilievre said during Question Period Thursday afternoon.
At some point after those comments, Singh stepped out from behind his desk in the House and a two-minute shouting match ensued between the two leaders and their MPs before the Speaker intervened.
Outside the House, Poilievre said he plans to put forward another non-confidence motion at the next opportunity.
“We want a carbon-tax election as soon as possible, so that we can axe Trudeau’s tax before he quadruples it to 61 cents a litre,” he said.
Liberal House leader Karina Gould says there is much work the government still needs to do, and that Singh has realized the consequences of potentially bringing down the government. She refused to take questions about whether her government will negotiate with opposition parties to ensure their support in future confidence motions.
Bloc Québécois Leader Yves-François Blanchet hasn’t ruled out voting no-confidence in the government the next time a motion is tabled.
“I never support Liberals. Help me God, I go against the Conservatives on a vote that is only about Pierre Poilievre and his huge ambition for himself,” Blanchet said Thursday.
“I support the interests of Quebecers, if those interests are also good for Canadians.”
A Bloc bill to increase pension cheques for seniors aged 65 to 74 is now at “the very centre of the survival of this government,” he said.
The Bloc needs a recommendation from a government minister to OK the cost and get the bill through the House.
The Bloc also wants to see more protections for supply management in the food sector in Canada and Quebec.
If the Liberals can’t deliver on those two things, they will fall, Blanchet said.
“This is what we call power,” he said.
Treasury Board President Anita Anand wouldn’t say whether the government would be willing to swallow the financial implications of the Bloc’s demands.
“We are focused at Treasury Board on ensuring prudent fiscal management,” she said Thursday.
“And at this time, our immediate focus is implementing the measures in budget 2024 that were announced earlier this year.”
This report by The Canadian Press was first published Sept. 19, 2024.
OTTAWA – Treasury Board President Anita Anand has been sworn in as federal transport minister at a ceremony at Rideau Hall, taking over a portfolio left vacant after Pablo Rodriguez resigned from cabinet and the Liberal caucus on Thursday.
Anand thanked Rodriguez for his contributions to the government and the country, saying she’s grateful for his guidance and friendship.
She sidestepped a question about the message it sends to have him leave the federal Liberal fold.
“That is a decision that he made independently, and I wish him well,” she said.
Prime Minister Justin Trudeau was not present for the swearing-in ceremony, nor were any other members of the Liberal government.
The shakeup in cabinet comes just days after the Liberals lost a key seat in a Montreal byelection to the Bloc Québécois and amid renewed calls for Prime Minister Justin Trudeau to step down and make way for a new leader.
Anand said she is not actively seeking leadership of the party, saying she is focused on her roles as minister and as MP.
“My view is that we are a team, and we are a team that has to keep delivering for our country,” she said.
The minority Liberal government is in a more challenging position in the House of Commons after the NDP ended a supply-and-confidence deal that provided parliamentary stability for more than two years.
Non-confidence votes are guaranteed to come from the Opposition Conservatives, who are eager to bring the government down.
On Thursday morning, Rodriguez made a symbolic walk over the Alexandra Bridge from Parliament Hill to Gatineau, Que., where he formally announced his plans to run for the Quebec Liberal party leadership.
He said he will now sit as an Independent member of Parliament, which will allow him to focus on his own priorities.
“I was defending the priorities of the government, and I did it in a very loyal way,” he said.
“It’s normal and it’s what I had to do. But now it’s more about my vision, the vision of the team that I’m building.”
Rodriguez said he will stay on as an MP until the Quebec Liberal leadership campaign officially launches in January.
He said that will “avoid a costly byelection a few weeks, or months, before a general election.”
The next federal election must be held by October 2025.
Conservative Leader Pierre Poilievre said he will try to topple the government sooner than that, beginning with a non-confidence motion that is set to be debated Sept. 24 and voted on Sept. 25.
Poilievre has called on the NDP and the Bloc Québécois to support him, but both Jagmeet Singh and Yves-François Blanchet have said they will not support the Conservatives.
Rodriguez said he doesn’t want a federal election right away and will vote against the non-confidence motion.
As for how he would vote on other matters before the House of Commons, “it would depend on the votes.”
Public Services and Procurement Minister Jean-Yves Duclos will become the government’s new Quebec lieutenant, a non-cabinet role Rodriguez held since 2019.
This report by The Canadian Press was first published Sept. 19, 2024.
— With files from Nojoud Al Mallees and Dylan Robertson
