ARCHIVED - Office of the Communications Security Establishment Commissioner - Report

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Commissioner's Message

I am pleased to present to Parliament and Canadians the Departmental Performance Report of the Office of the Communications Security Establishment Commissioner (Commissioner's office) for the fiscal year ending March 31, 2010.

Like the 2009-10 Report on Plans and Priorities that preceded it, this is the first Departmental Performance Report of the Office of the Communications Security Establishment Commissioner. It should be noted, however, that the Commissioner's office has been in existence since the appointment of the first Commissioner on June 19, 1996. The Commissioner's office was funded since its creation in 1996 by the Department of National Defence (DND) but it received administrative and other support from the Privy Council Office (PCO). In April 2008, the Commissioner's office was granted its own appropriation, ending the funding from DND and moving away from reliance on PCO for administrative support. The Commissioner's office has established its own financial office and has entered into agreements with other government departments to provide, on a part-time basis, both its human resources and informatics services.

This performance report is on the activities and results of the Commissioner's office under my two predecessors, the Honourable Peter deC. Cory and the late Honourable Charles D. Gonthier. The office was without a Commissioner for five months following the untimely death in July of the Honourable Charles D. Gonthier. The Honourable Peter deC. Cory was appointed as Commissioner on December 14, 2009 but resigned March 31, 2010. I was appointed Commissioner on June 18, 2010.

Reviews planned were undertaken, reviews in progress were moved towards conclusion or finished. Given the period of time without a Commissioner and the time required to brief a new Commissioner (Cory) on the mandate and activities of the Commissioner's office, just three reports were provided to the Minister (2 reviews and 1 study). Review methodologies were updated and review approaches were expanded to allow for more effective review. Newly installed internal services are functioning well and the requirements of the Commissioner's office and the central agencies are being met.

Considering the absence of a Commissioner for more than five months, the past year was relatively successful for the Commissioner's office. There is, however, more to be done. Operational capacity has to be increased to meet the increasing demands for review and to continue to allow the Commissioner to be able to provide the necessary reassurances to the Minister regarding the Communications Security Establishment Canada's compliance with the law and the protection of the privacy of Canadians. Additional secure office space has to be acquired to allow operational and administrative capacity to be reached. Satisfactory progress is being made on both fronts.

I would like to thank the former Executive Director, Joanne Weeks, for all of her hard work and dedication to the Commissioner's office since it was formed in 1996. The Commissioner's office has come a long way in fourteen years, thanks in no small part to her efforts.  

Finally, I would like to remember the late Honourable Charles Gonthier and his contribution to this Office over three years. Monsieur Gonthier passed away on July 17, 2009 while still Commissioner. The 2009/2010 Annual Report was dedicated to his memory. He leaves a very rich legacy.

The Honourable Robert Décary, Q.C.
Commissioner

9 September 2010

Section I: Overview of the Office of the Communications Security Establishment Commissioner

Raison d'être

The Communications Security Establishment Commissioner is to ensure that the Communications Security Establishment Canada performs its duties and functions in accordance with the laws of Canada. This includes having due regard for the privacy of Canadians. The Commissioner's office exists to support the Commissioner in the effective discharge of his mandate.

Responsibilities

The duties of the Commissioner are set out under the following subsections of the National Defence Act:

273.63(2)

a) to review the activities of the Communications Security Establishment Canada to ensure they comply with the law;

b) in response to a complaint, to undertake any investigation that the Commissioner considers necessary;

c) to inform the Minister of National Defence and the Attorney General of Canada of any activity of Communications Security Establishment Canada that the Commissioner believes may not be in compliance with the law;

273.65(8)

to review and report to the Minister as to whether the activities carried out under a ministerial authorization are authorized;

273.63(3)

to submit an annual report to the Minister on the Commissioner's activities and findings within 90 days after the end of each fiscal year;

and under the Section 15 of the Security of Information Act:

to receive information from persons who are permanently bound to secrecy and who seek to defend the release of classified information about Communications Security Establishment Canada on the grounds that it is in the public interest.

The first Commissioner of the Communications Security Establishment was appointed by Order in Council pursuant to Part II of the Inquiries Act on June 19, 1996. The original mandate of the Commissioner was to review the activities of the Communications Security Establishment Canada (CSEC) to ensure that they were in compliance with the law and to investigate complaints about CSEC's activities. Following the terrorist attacks in the United States, Parliament adopted the Anti-terrorism Act, which came into force on December 24, 2001. This Act amended the National Defence Act (NDA) by adding Part V.1 and creating legislative frameworks for both the CSEC and the Commissioner. The Commissioner was also given a new duty pursuant to the Security of Information Act.

The Office of the Communications Security Establishment Commissioner can be most aptly described as a micro-agency. Operating out of Ottawa, the Office of the Commissioner currently has 8 employees and an operating budget of $2.124 million. It should be noted that the National Defence Act provides the Commissioner with independent hiring authority, and accordingly, the Commissioner's office functions as a separate employer.

Strategic Outcome and Program Activity Architecture (PAA)

The strategic outcome of the Office of the Communications Security Establishment Commissioner is that the CSEC performs its duties and functions in accordance with the laws of Canada. This includes safeguarding the privacy of Canadians. The OCSEC has two program activities – its review program and internal services.  

The relationship of the program activities, the priorities and the strategic outcome is illustrated in the diagram below.

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Summary of Performance  

2009–10 Financial Resources ($millions)

Planned Spending	Total Authorities	Actual Spending
1.5	2.3	1,5

2009–10 Human Resources (FTEs) 

Planned	Actual	Difference
9	8	1

The Commissioner's office increased its total authorities by $.8 million in 2009-10. The increase was to allow for additional staff as well as increased operational and administrative support for the Commissioner in the discharge of his mandate and for the establishment and maintenance of the Commissioner's office as an independent and autonomous agency. The actual spending lags behind the total authorities as planned staffing increases are still underway and costs related to increases in office space and administrative overhead have yet to be incurred.

Strategic Outcome: Improving the effectiveness and efficiency of the review program
Performance Indicators	Targets	2009–10 Performance
Level of compliance	Increase level of compliance	There were no instances of non-compliance.
% of recommendations implemented	Increase the % of recommendations implemented	All of the findings and recommendations made during 2009-10 were accepted and were or are being implemented. The Commissioner's office is working on developing additional meaningful indicators and targets for its review program
	Privacy of Canadians is protected	The Commissioner's office is working on developing and implementing relevant and meaningful targets and indicators for the protection of the privacy of Canadians.

Program Activity	2008–09 Actual Spending ($millions)	2009–10[1]				Alignment to Government of Canada Outcome
		Main Estimates	Planned Spending	Total Authorities	Actual Spending
Review Program	1.2	1.3	1.3	1.7	1.0	Safe and secure Canada
Internal Services	0.2	0.2	0.2	0.6	0.5
Total	1.4	1.5	1.5	2.3	1.5

Contribution of Priorities to Strategic Outcome(s)

Operational Priorities	Type	Status	Linkages to Strategic Outcome(s)
Improving the effectiveness and efficiency of the review program	Ongoing	Met The 2009-10 year is not truly representative owing to the period of time the office was without a Commissioner. Only three reports (two reviews and one study) were submitted to the Minister.	The two reviews found that CSEC complied with the law and ministerial requirements and, for the activities that were reviewed, protected the privacy of Canadians. The study provided assurance that there were no significant areas of potential non-compliance and identified areas of potential risk to privacy for follow-up review

Management Priorities	Type	Status	Linkages to Strategic Outcome(s)
Transitioning effectively to independent status	Ongoing	Mostly Met	Transitioning is still underway as the Commissioner's office is still in the process of staffing and has yet to lease and occupy its additional space requirements. Fully transitioned, internal services will be better able to support the Commissioner in the discharge of his mandate.

Risk Analysis

Commissioners have stated that amendments to the NDA are necessary to clarify ambiguities relating to foreign intelligence ministerial authorizations. The Minister of National Defence had indicated to Commissioner Gonthier that clarification of ambiguities and other amendments to the NDA were a legislative priority. The Commissioner anticipates the introduction of a bill to amend the NDA and the opportunity to comment on these amendments at Committee stage. The Commissioner will continue to push for these amendments to the NDA.

CSEC's resources have increased dramatically over the past decade in response to the increased threat from terrorism and to the engagement of Canadian Forces in Afghanistan. The increased resources and operational activities of CSEC mean the Commissioner's office must maintain its own resource level and review programmed proportionally. The Office must also ensure that its risk management process provides adequate guidance for selecting reviews of CSEC activities where the risks to compliance and to the privacy of Canadians are most significant,

The Commissioner's office must ensure that it maintains its capacity to conduct timely, comprehensive and effective reviews. Recruiting and retention of qualified resources is essential to the effectiveness of reviews. The skills being sought are in high demand and short supply. Review programs and methodologies need to be constantly updated and improved upon to ensure that reviews fulfill the Commissioner's mandate and allow him to provide the Minister, and ultimately all Canadians the assurance that CSEC is complying with the law.    

Key to the success of the Commissioner's office is maintaining an effective working relationship with CSEC. The relationship between the parties is based on transparency and professionalism. For example, the work plan of the Commissioner's office is shared with CSEC. Throughout the review process, there is opportunity for each party to provide comment and input. The success of the relationship is dependent in large measure on ensuring recruitment and retention of qualified and capable individuals. The Commissioner's office has been successful in this regard.

The Commissioner's office has completed its first full year of functioning as a separate agency of government without financial support being provided by DND and administrative support being provided by the Privy Council Office. Administrative and financial practices must continue to be developed and strengthened to ensure that the policies, procedures and information requirements of the Commissioner's office and the central agencies are met.  

Expenditure Profile

The Commissioner's office has operated as a separate agency with its own appropriation for two years only. Prior to that, the Commissioner's office was part of DND and receiving administrative and financial support from the Privy Council Office. (Expenditure comparisons with these years would be of little value.) The change in total expenditures from 2008-09 to 2009-10 was from $1.4 million dollars to $1.5 million dollars, or $100 thousand. The increase between these two years is primarily due to the increased cost of administrative and financial operations. As the Commissioner's office transitioned from dependence on the PCO for administrative and financial support to being fully responsible for its own administrative and financial operations, the costs increased. It should be noted as well that there are still additional base costs to be incurred (for the most part, additional FTEs to reach operational and administrative capacity and additional secure accommodations to support capacity.) These additional costs to be incurred explain the difference between the total authorities available for use and the actual authorities used in the current year.

Voted and Statutory Items

($ millions)

Vote # or Statutory Item (S)	Truncated Vote or Statutory Wording	2007–08 Actual Spending	2008–09 Actual Spending	2009–10 Main Estimates	2009–10 Actual Spending
25	Operating expenditures	N/A	1.3	1.4	1.4
(S)	Contributions to employee benefit plans	N/A	0.1	0.1	0.1
Total		N/A	1.4	1.5	1.5

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