Introduction
Special Report on the Collection, Use, Retention and Dissemination of Information on Canadians in the context of the Department of National Defence and the Canadian Armed Forces Defence Intelligence Activities

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1. In 2018, the National Security and Intelligence Committee of Parliamentarians (the Committee or NSICOP) completed a review of the defence intelligence activities of the Department of National Defence and the Canadian Armed Forces (DND/CAF). The objective of that review was, in part, to improve Canadians' and Parliament's awareness and knowledge of the DND/CAF defence intelligence mandate and activities. It focused on the general authority framework and organizational structure of DND/CAF's defence intelligence program. Footnote 1 In the last stage of that review, DND/CAF provided the Committee with the Chief of Defence Intelligence Functional Directive: Guidance on the Collection of Canadian Citizen Information (CANCIT Functional Directive). The Committee determined that it did not have sufficient time to analyze the new directive for incorporation into its Annual Report 2018, but believed that it raised important issues that deserved further attention.

2. The Committee identified three reasons to conduct this review. First, the Committee wanted to reconcile the apparent contradiction between statements made by DND/CAF in 2018 and the purpose of the CANCIT Functional Directive. DND/CAF stated in briefings to NSICOP that it does not target Canadians in its defence intelligence activities. Footnote 2 Those statements appeared inconsistent with the title and content of the CANCIT Functional Directive. In short, on a plain reading, the CANCIT Functional Directive seemed to authorize DND/CAF to direct its defence intelligence activities at Canadians.

3. Second, the Committee wanted to understand the legal framework that governs the collection, use, retention and dissemination of information about Canadians by DND/CAF. As reported in the Committee's Annual Report 2018, the authority to use what DND/CAF describes as the full spectrum of defence intelligence activities comes through the National Defence Act(assistance to a government organization) or an exercise of the Crown prerogative. Activities conducted under the Crown prerogative are not authorized by an Act of Parliament. In contrast, all other Canadian intelligence agencies operate under a specific statutory regime that is tailored to their respective mandate, particularly where information about Canadians is involved Footnote 3 The Committee wanted to revisit its previous assessment of DND/CAF authority to determine whether any adjustment was necessary to the findings and recommendations outlined in Chapter 4 the Committee's Annual Report 2018.

4. Finally, the Committee wanted to assess whether the legal and policy framework underpinning DND/CAF collection, use, retention and dissemination of information about Canadians gave rise to particular legal and operational risks.

5. The terms of reference for the review stated four specific objectives:

  • describe the DND/CAF authority and policy framework for the collection, use, retention and dissemination of information on Canadians;
  • describe the circumstances in which, and purposes for which, the collection, use, retention and dissemination of information on Canadian citizens is permitted, versus those in which it is prohibited;
  • describe the manner in which DND/CAF tracks and documents its collection, use, retention and dissemination of information on Canadian citizens; and
  • assess the legal, policy and administrative frameworks under which the collection, use, retention and dissemination of information on Canadian citizens is permitted or prohibited.

6. On December 6, 2018, the Committee informed the Minister of National Defence of its decision to prepare a Special Report, under sub-section 21(2) of the NSICOP Act, of the collection, use, retention and dissemination of information on Canadians in the context of DND/CAF defence intelligence activities. On the same day, the Committee provided the Minister of National Defence with the terms of reference for this Special Report.

7. Between December 6, 2018, and August 23, 2019, the Committee reviewed the material received from DND/CAF (both classified and unclassified) in the context of the 2018 review, and received over 950 pages of new information for this Special Report, including legal opinions, ministerial letters, ministerial directives, functional and operational directives and orders, briefing notes, presentations, and operational authorizations and directions. The Committee supplemented this material with separate academic and legal research. DND/CAF officials appeared before the Committee once, met with the Secretariat on seven separate occasions, and provided a number of written responses to Committee questions. The Committee also received information from other government departments. This included the Communications Security Establishment regarding its policies to protect the privacy of Canadians; the Department of Justice regarding *** and the Canadian Security Intelligence Service (CSIS) regarding *** The views of Office of the Privacy Commissioner were also sought on one of the recommendations.

8. This report contains four sections. The first is a description of the context in which DND/CAF encounters information about Canadians in the conduct of its operations. The second explains the legal framework for those operations, drawing in large part from the Committee's 2018 Annual Report. The third describes the most relevant sections of the CANCIT Functional Directive. The Committee then provides its assessment, findings and recommendations. During the course of this review, the Committee encountered some challenges with DND/CAF. For example:

  • DND/CAF stated that there were no emails among officials responsible for developing the directive over the course of a year. The absence of these emails prevented the Committee from determining the rationale behind the directive.
  • In some cases, DND/CAF provided summaries of key information and not original source documents, which would have allowed the Committee to make its own assessment of the facts at issue.
  • DND/CAF did not proactively provide documents relevant to the review that the Committee later discovered had been released through access to information requests.

9. The Committee made its assessment, findings and recommendations based on the record before it.

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