Remarks to the Standing Senate Committee on National Security, Defence and Veterans Affairs

The Honourable Simon Noël, K.C., Intelligence Commissioner

June 13, 2024

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Thank you, Mr. Chair, and Senators. Thank you for inviting me to discuss Bill C-70 with you. With me today is Me Justin Dubois, Executive Director and General Counsel of my office.

I will focus my comments on the dataset regime – what we call “le régime des ensembles de données” in French – which is the subject of certain amendments in the bill. Talk about datasets means talking about the privacy of Canadians. The Intelligence Commissioner plays an important oversight and review role within this regime.

In one sentence, my mandate is to approve – or not – certain national security and intelligence activities planned by the Communications Security Establishment and the Canadian Security Intelligence Service (CSIS). For example, I must approve classes of acts or omissions that allow CSIS employees or human sources to carry out activities that would otherwise be against the law. I must also approve CSIS activities that relate to datasets.

I believe it is important to broadly understand how the dataset regime works when considering the amendments. It allows CSIS to collect, retain and use information that is not directly and immediately related to a threat to the security of Canada. For CSIS to collect the information, it must be relevant to its duties.

To collect a dataset containing Canadian-related information, it must fall within an “approved class” – in other words a category – that has been authorized by the Minister of Public Safety, and approved by the Intelligence Commissioner. To retain and use the Canadian-related information, CSIS must then obtain a judicial authorization from the Federal Court.

CSIS may also retain a foreign dataset – that is a dataset with no apparent Canadian-related information. In that case, the Intelligence Commissioner must approve the authorization for retention issued by the Director of CSIS.

Since datasets may contain a large volume of information that is not directly threat-related, the dataset regime has the potential to impact the privacy interests of Canadians. An important part of my role is to ensure that the Minister and the Director adequately consider Canadian privacy interests.

Most of the proposed changes related to the dataset regime in the Bill are intended to facilitate the Service’s use of Canadian and foreign datasets. I anticipate that the proposed amendments will not change the nature of my role of conducting independent quasi-judicial oversight.

That said, I would like to highlight a proposed amendment that would nonetheless have an impact on the work of the Intelligence Commissioner as well as on the privacy interests of Canadians. The bill would authorize the Service to collect and retain datasets for the purposes of section 15 of the CSIS Act. This section of the Act allows the Service to conduct investigations for the purpose of providing security assessments to the Government of Canada; for example, for public service employment and immigration purposes. This expands the scope of datasets about Canadians that the Service may collect and retain.

Our security agencies need the appropriate tools to conduct their activities. Since they are given extraordinary powers, we must continue to ensure that there is sufficient oversight and control over the use of these powers. I am pleased to see that the bill does not change the current oversight framework.

I am here as Intelligence Commissioner, but I carry with me experience as a designated judge of the Federal Court as well as counsel involved in national security matters and commissions since 1979. I look forward to answering any questions to the extent that my perspective and experience can be useful to the committee. Thank you.  

Standing Senate Committee on National Security, Defence and Veterans Affairs: link to recording of Intelligence Commissioner's answers to questions from members of the Committee begins at 10:30:48.

Briefing package for the Intelligence Commissioner