Conclusion
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

125. The Committee prepared this Special Report for three reasons. The first was to reconcile DND/CAF's assertion that it does not direct its defence intelligence activities at Canadians with a plain language reading of the CANCIT Functional Directive, which suggests that DND/CAF does. The second was to understand DND/CAF's legal framework governing information on Canadians to determine whether the Committee's 2018 recommendations should be adjusted. The third was to determine whether DND/CAF's legal framework gave rise to any legal or operational risks.

126. On the basis of the record before the Committee, it is clear that DND/CAF does not currently direct its defence intelligence activities at Canadians, except in specific circumstances where it has clear authority (counter-intelligence) or where it provides assistance to other government organizations under their authority (a case studied in this review). That clarity is not reflected in the CANCIT Functional Directive. Rather, the CANCIT Functional Directive reflects the assertion by DND/CAF that a decision by the government under the Crown prerogative could at some point provide DND/CAF with authority to direct its defence intelligence activities at Canadians.

127. The Committee does not believe that this assertion is reasonable. Canadian law has strong protections against unreasonable search and seizure and provisions to protect the privacy rights of Canadians. These are grounded in statutes that apply to every major security and intelligence organization. If the government decided to permit DND/CAF to direct its defence intelligence activities at Canadians, using the Crown prerogative may not prove to be an adequate source of authority. In its 2018 Annual Report, the Committee recommended that the government give serious consideration to providing explicit legislative authority for the conduct of DND/CAF defence intelligence activities. For the reasons outlined in this Special Report, the Committee now believes that it is insufficient for the government to only consider this question; rather, the government should provide DND/CAF with a clear statutory authority to conduct its defence intelligence activities in the context of deployed operations, including to collect information on Canadians.

128. This Special Report has also identified legal and operational risks which the Committee believes should be addressed. The first risk relates to the Committee's conclusion that DND/CAF believes that the Privacy Act does not apply to its operations abroad, although DND/CAF alleges that it applies the spirit of the Act *** Here, too, the Committee's view is that DND/CAF's position is unjustifiable, ***

129. The second risk is that Canadian law may not be clear enough*** when Canadians are present in a DND/CAF theatre of operations. These instances may be rare, but they have occurred. When they occur, they raise significant policy, legal and operational issues. The Committee believes that Canadians who have travelled abroad to pursue their objectives through violent means should not be shielded from the legitimate intelligence activities of Canada's security and intelligence organizations. It also believes that the government has a responsibility to help to identify those individuals and take the necessary measures to stop them. In that context, DND/CAF intelligence personnel should be clear about their authorities to obtain, collect, analyze and disseminate information about Canadians, subject to clear and reasonable statutory limitations that are consistent with the Charter, whether or not it applies outside Canada.