Chapter 3: Treatment of Information About Canadians Before the CANCIT Functional Directive
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
46. DND/CAF stated that prior to the issuance of the CANCIT Functional Directive, "direction for handling [information about Canadians] was provided in discrete policies and directives related to specific intelligence disciplines and defence activities where there [is] a possibility that Canadian citizen information could be collected as part of a mandated DND/CAF operation or activity." Footnote 61 Of all the defence intelligence activities conducted by DND/CAF, five were considered the most relevant in the context of this special review with respect to the collection, use, retention or dissemination of information about Canadians. Explained in detail below, these are:
- intelligence activities using the Internet;
- signals intelligence (SIGINT);
- human intelligence (HUMINT);
- counter-intelligence; and
- captured equipment and material (as of April 1, 2019, known as captured equipment and documents).
Intelligence activities using the Internet
47. Intelligence activities using the Internet is defined by DND/CAF as "the use of Internet-based and Internet-enabled open source resources and platforms to discover, collect and leverage information for the purposes of generating or contributing to intelligence products." Footnote 62 The Chief of Defence Intelligence issued the Chief of Defence Intelligence Functional Directive: Framework for the Conduct of Intelligence Activities Using the Internet in February 2017. The directive stated that its purpose was to "enable the conduct of defence intelligence activities using the Internet by ensuring that such activity is consistent with Departmental mandate, and considers and mitigates the risk of*** [and stipulates] a standardized and consistent risk analysis process to ensure that appropriate authorities, technology and procedures are applied." Footnote 63
48. The directive describes the authority basis for intelligence activities using the Internet as consistent with those for all other defence intelligence activities. In other words, the legal authority to conduct intelligence activities using the Internet is found in elements of the common law, specifically the Crown prerogative, in Canadian legislation (i.e., the National Defence Act) and in international law. It is derived from DND/CAF's authority to conduct mandated defence activities and operations approved by the Government of Canada. Footnote 64
49. The directive includes key controls for DND/CAF's conduct of intelligence activities using the Internet, notably that:
- information cannot be collected solely on the basis that it is publicly available on the Internet - DND/CAF personnel, "acting as agents of the State [must ensure] that collection is lawful and consistent with their mandate;" and
- DND/CAF personnel shall not intentionally collect information on Canadians, except when authorized by a competent authority with a legal mandate to do so.
50. The directive does not explicitly prohibit the intentional collection of Canadian citizen information. Rather, the directive acknowledges in its description of the types of Internet-based activities and methods of acquiring information from the Internet that Canadian citizen information could be inadvertently or intentionally collected. The directive requires that DND/CAF personnel complete formal risk assessments to initiate an Internet-based intelligence operation, which must include assessments of whether DND/CAF personnel anticipate that personal information of Canadians would be intentionally or inadvertently collected. Where intentional collection is anticipated, DND/CAF personnel must demonstrate how that collection is permitted under the specific mandate of the mission in question. Footnote 65
51. The directive also mentions the DND/CAF authority to provide Internet-based intelligence support to other federal departments and agencies, pursuant to section 273.6 of the National Defence Act. [*** The rest of this paragraph was revised to remove injurious or privileged information. This paragraph references an example of where DND/CAF provided such support to another government department. ***] Footnote 66
Signals intelligence
52. SIGINT is derived from the interception, collection, processing and analysis of communications and data links, including email, mobile and telephone communications. SIGINT also includes intelligence derived from electromagnetic emissions and instrumentation signals from things like radars and missile guidance and command systems. Footnote 67
53. Prior to August 1, 2019, DND/CAF drew its authority to conduct SIGINT activities from the Crown prerogative, or through the statutory authority of the Communications Security Establishment (CSE), which was then found in Part V.1 of the National Defence Act. Footnote 68 For deployed operations, the Minister of National Defence had delegated the authority to conduct SIGINT activities from CSE to the CAF in accordance with the Ministerial Directive on the Integrated SIGINT Operations Model. This meant that DND/CAF SIGINT activities, conducted under CSE authorities, were subject to the same restrictions contained in Part V.1 of the National Defence Act, including the prohibition against directing intelligence activities at Canadians. Footnote 69 These activities were also subject to relevant ministerial authorizations, and were subject to review for lawfulness by the CSE Commissioner. Footnote 70 The prohibition against directing intelligence activities at Canadians was subject to one exception: when CSE provided technical and operational assistance to federal law enforcement and security agencies pursuant to subsection 273.64(1)(c) of the National Defence Act. CSE requests for assistance from DND/CAF would have been subject to the limitations imposed by law on the assisted agency or department (such as the RCMP or CSIS). Footnote 71
Human intelligence
54. HUMINT is intelligence derived from the collection and analysis of information from human sources. HUMINT activities are conducted by specialized DND/CAF personnel. The DND/CAF HUMINT Policy Framework refers to several specialties in relation to the conduct of HUMINT activities including: source handling and intelligence interrogation, and the conduct of strategic debriefing.
Source handling and intelligence interrogation
55. Source handling operations are controlled HUMINT activities conducted by specialized units and include *** in order to collect and provide information. The Chief of Defence Intelligence Functional Directive: CF Policy Framework for the Conduct of HUMINT Activities governs source handling operations.
56. An intelligence interrogation is defined as the controlled, systematic and legally compliant process of using DND/CAF-approved approaches, strategies and ploys to question detainees taken into custody during the course of international operations to collect information to fulfill intelligence requirements. Intelligence interrogations are governed by the 2014 Defence Intelligence Functional Directive: CF HUMINT Intelligence Interrogation Operations in International Operations.
57. Neither source handling operations nor intelligence interrogations may be directed at nor otherwise involve a Canadian. If a Canadian is inadvertently involved in a source handling operation or if information is collected about a Canadian, the operation must be suspended and the incident brought to the attention of the operational commander. Similarly, an intelligence interrogation must be suspended if it is determined that the subject of the interrogation is a Canadian. The incident must be brought to the attention of the chain of command as soon as possible.
Strategic debriefing
58. DND/CAF defines debriefing as the voluntary questioning of individuals who may possess knowledge of defence intelligence interest to obtain usable information or confirm previously collected information in response to defence and military intelligence requirements. "Strategic debriefing" is defined as the voluntary questioning, through a deliberate and systematic process, of individuals who may possess information relevant to strategic and operational intelligence requirements. These activities are governed by the 2015 Defence Intelligence Functional Directive: Strategic Debriefing (Strategic Debriefing Functional Directive).
59. The Strategic Debriefing Functional Directive states that strategic debriefings may take place in Canada or abroad. It also identifies three groups of individuals who may possess information of intelligence value that would warrant the conduct of strategic debriefings:
- *** the Commander of Canadian Forces Intelligence Command must authorize these briefings;
- *** the Minister of National Defence and the Chief of Defence Staff must authorize these briefings on a case-by-case basis; and
- *** the Minister of National Defence and the Chief of Defence Staff must authorize these briefings on a case-by-case basis.
60. The Strategic Debriefing Functional Directive states that the legal authority to conduct this type of activity is derived, as are all defence intelligence activities, from Canadian legislation (i.e., the National Defence Act), international law and elements of the common law, specifically the Crown prerogative. Accordingly, any methods used in the conduct of strategic debriefing remain subject to applicable Canadian and international law, and government and ministerial policies and directives. This type of activity also requires the existence of a nexus between the nature and scope of the activity and a lawfully authorized defence operation or activity.
Biometrics
61. A DND/CAF order for Operation Impact prohibits the intentional collection of biometrics from Canadians and permits the collection of biometrics only from foreign nationals seeking entry into DND/CAF-controlled areas. Footnote 72 The order states that if biometric data about a Canadian is inadvertently collected, and the Canadian is deemed to pose a threat, the data shall be segregated from the rest of the data. DND/CAF personnel are then required to consult with the chain of command to determine whether the information could be shared with any Canadian government organization. If the Canadian whose data has been collected is not deemed to pose a threat, the data must be immediately deleted from all systems.
Counter-intelligence
62. DND/CAF defines counter-intelligence as those activities concerned with identifying and counteracting threats to the security of DND employees, DND/CAF members, and DND/CAF property and information; the threats are posed by hostile intelligence services, organizations or individuals, who are or may be engaged in espionage, sabotage, subversion, terrorist activities, organized crime or other criminal activities. Footnote 713 DND/CAF stated that counter-intelligence operations are one of two activity areas currently mandated and authorized to intentionally collect information about Canadians (the other being another intelligence activity) *** Footnote 74
63. DND/CAF uses different authorities to conduct counter-intelligence activities. When deployed on operations, DND/CAF explained that the Canadian Forces National Counter-Intelligence Unit conducts counter-intelligence activities pursuant to a relevant exercise of the Crown pre rogative. Footnote 75
64. Domestically, DND/CAF stated that the authority to conduct counter-intelligence activities is found in the Policy on Government Security, which is issued by the Treasury Board of Canada Secretariat under the authority of section 7 of the Financial Administration Act. In application of the authority granted to deputy heads under this policy, the Vice Chief of Defence Staff issued the Defence Administrative Orders and Directives (the 8002 series) to meet the obligations of the Chief of Defence Staff and the Deputy Minister, as deputy heads, to manage security activities within DND/CAF. Footnote 76 The Chief of Defence Intelligence has also issued two functional directives on counter-intelligence investigations. Together, the functional directives and the 8002 Series established the framework for the National Counter-Intelligence Program and creates the Counter-Intelligence Oversight Committee. They also grant authority to the Canadian Forces National Counter-Intelligence Unit to collect, collate and assess counter-intelligence security threat information to provide security intelligence, security threat information and early warnings to DND/CAF senior managers and commanders.
65. DND/CAF explained that the Canadian Forces National Counter-Intelligence Unit obtains CANCIT information in the following circumstances:
- when identifying and monitoring threats to the security of DND/CAF;
- when conducting Security Intelligence Liaison Program activities as the office of primary concern for the collection of security intelligence;
- through approved access to information requests by the Canadian Forces National Counter-Intelligence Unit (identified as an investigative body in the Privacy Act);
- received from other government departments or agencies in accordance with the Security of Canada Information Sharing Act; Footnote 77 and
- via exchanges with the Financial Transactions and Reports Analysis Centre on financial information relating to personnel who are subjects of an active Canadian Forces National Counter-Intelligence Unit investigation, in accordance with section 55.1(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. Footnote 78
66. DND/CAF stated that its record keeping system is not designed to produce statistics on the magnitude of the Canadian Forces National Counter-Intelligence Unit's collection, retention, use and dissemination of information about Canadians. Footnote 79 However, DND/CAF reported that between January 1 and March 14, 2019, the unit generated *** counter-intelligence reports, *** of which (80%) contained information about Canadians, and *** of which DND/CAF shared the contents of orally with Canadian security partners.
67. DND/CAF described this data sample as representative of the amount of CANCIT information the unit might collect or share with Canadian security partners in a given 10-week period. DND/CAF stated that information is shared with security partners for two reasons: first, to determine if partners have any adverse information concerning the persons of interest to the Canadian Forces National Counter-Intelligence Unit; and second, to determine if security partners have any information that indicated if a threat was posed by or to the individual. Counter-intelligence information, including information about Canadians, may be shared with domestic security partners in accordance with the Security of Canada Information Sharing Act and under subsection 8(2)(a) of the Privacy Act. Consistent with the Privacy Act, the Canadian Forces National Counter-Intelligence U nit maintains a personal information bank for the collection, retention and use of Canadian citizen information in support of its activities. Footnote 80
68. Although DND/CAF stated that it does not share actual or potential information about Canadians with international partners, the department noted that it could legally disseminate it, "if the disclosure is authorized under the Privacy Act, in accordance with the Charter as the case may be, and in compliance with the Ministerial Directive on Avoiding Com plicity in Mistreatment by Foreign Entities." Any proposed international sharing of information would undergo consultation with legal advisors and strategic policy advisors. Footnote 81
Captured equipment and material / Captured equipment and documents
69. Until recently, captured equipment and material (CEM) was governed in Canada by the 2012 Chief of Defence Intelligence Functional Direction: *** (2012 CEM Functional Direction). In July *** DND/CAF directed that the functional direction be revised, due to "a defence intelligence policy gap with respect to intelligence sharing derived from analysis of CEM." Footnote 82 At the time, the Chief of Defence Intelligence issued the Interim Defence Intelligence Policy Guidance in Support of *** Among other things, the interim policy guidance stipulated that the *** will share intelligence with *** only if the Canadian department or agency from which the intelligence was derived deemed that intelligence releasable. Footnote 83 As of April 1, 2019, the 2012 CEM Functional Direction has been replaced by the Chief of Defence Intelligence Functional Directive: Exploitation of Captured Equipment and Documents (2019 CED Functional Directive). Footnote 84
70. The terms CEM and CED both include documents, media or equipment recovered from a captured person, during a search of a location or, more generally, during the conduct of an operation. The exploitation of CEM is a standard intelligence activity among modern militaries, and provides decision-makers with intelligence concerning the capabilities and intentions of opposing forces. It may also provide intelligence for the planning and conduct of subsequent operations, targeting and the initiation of other intelligence collection activities. Footnote 85
71. Both the 2012 CEM Functional Direction and the 2019 CED Functional Directive define exploitation as including the systematic retrieval and analysis of captured equipment, documents and media. Exploitation may involve the extraction and processing of information of a technical, tactical or procedural nature, through the use of specific capabilities. Although the 2019 CED Functional Directive does not enumerate those capabilities, the 2012 CEM Functional Direction outlined that those could include ** Footnote 86
72. The 2012 CEM Functional Direction was silent on how to handle information about Canadians. By contrast, the 2019 CED Functional Directive provides that "if collection, handling, disclosure, or release of Canadian citizen information occurs, [the CANCIT Functional Directive] applies."
Sharing of CEM *** with DND/CAF and the CANCIT Functional Directive
73. The absence of clear direction on the handling of information about Canadians*** was an important impetus for the development of the CANCIT Functional Directive. Generally, DND/CAF attributed the need for this directive to changes in the operational environment, explaining that the risk of inadvertently collecting information about Canadians had been increasing in recent years. DND/CAF cited three developments that increased that risk:
- emerging intelligence capabilities, including the increased conduct by DND/CAF of intelligence activities using the Internet;
- the rise of CEM recovered in the battlefield by both Canadian and coalition forces; and
- the challenge of an increasing number of Canadian citizens in DND/CAF areas of operation (e.g., extremist travellers). Footnote 87
74. However, DND/CAF cited one specific *** event that triggered the development of the CANCIT Functional Directive. At some point in [*** The following two sentences were revised to remove injurious or privileged information and to ensure readability. The two sentences describe the event. ***] *** Footnote 88 In fact, DND/CAF noted that in the initial scoping of the policy requirements for the directive, some DND/CAF personnel believed that DND/CAF could not collect information about Canadians in any context. DND/CAF explained that this perception led intelligence personnel to request guidance *** on how to handle information about Canadians that was [*** related to the event ***]. Footnote 89 DND/CAF stated that the department developed the CANCIT Functional Directive as proactive guidance to provide DND/CAF personnel with clear direction as to when the collection of information about Canadians was permitted. DND/CAF also wanted to outline the procedures on the reporting, logging and destruction of information about Canadians when it is detected or collected inadvertently. Footnote 90
Issues raised by the sharing of CEM with DND/CAF
75. The sharing of CEM *** with Canada raised immediate issues for DND/CAF regarding its ability to lawfully share information with other Canadian government organizations, and the suitability of the legal and policy framework underpinning the *** DND/CAF has stated that defence intelligence activities often involve highly perishable operational intelligence, meaning that its value diminishes with time. Footnote 91 In a briefing note to the Chief of Defence Staff and the Deputy Minister, DND/CAF officials stated that the information found *** should have been shared as quickly as possible with Canadian law enforcement and security agencies, but that sharing was delayed by the complexities of different domestic information sharing laws and policies. They described this situation as an example of broader challenges associated with the collection, handling, sharing and exploitation of CEM. Footnote 92
76. The briefing note identified three overarching issues related to information sharing and the exploitation of this information within Canada:
- Differing mandates of partner agencies: CSIS, the RCMP and CSE have unique national security mandates. Each has different policies and requirements for receiving information from external entities.
- Sharing of large volumes of information: Existing intelligence-sharing instruments, such as the Security of Canada Information Sharing [now Disclosure] Act, were not created to deal with large volumes of information, or information the nature of which has not been previously reviewed to determine its content.
- Privacy Act requirements surrounding the exploitation of the information by DND/CAF in Canada: If the exploitation of the information *** occurs in Canada, Privacy Act requirements would need to be met. Footnote 93
77. The issue of Privacy Act requirements is particularly important. [*** This paragraph was revised to remove injurious or privileged information and to ensure readability. The paragraph notes that DND/CAF was aware that once the intelligence was in Canada, Privacy Act obligations would be triggered and it would have to meet a number of obligations and put in place required infrastructure. These obligations included determining the scope of personal information that DND/CAF possessed, determining what personal information of Canadians existed, ensuring that the information was used only for the purpose for which it was obtained, and that measures were put in place to protect all personal information from unauthorized access. There was also a requirement under the Privacy Act to create a personal information bank to hold all personal information. Footnote 94 ***] *** Footnote 95
78. [*** Paragraphs 78 and 79 were revised to remove injurious or privileged information and to ensure readability. The two paragraphs detail how DND/CAF and another government department agreed to cooperate. ***] Footnote 96
79. *** Footnote 97