The findings, contained in a report tabled by retired judge Robert Decary in Parliament Wednesday, are particularly explosive now given revelations prompted by whistleblower Edward Snowden about the U.S. government conducting widespread snooping of its citizens.
Decary, who has served as independent watchdog for the Communications Security Establishment Canada (CSEC) since 2010, said he discovered the potentially illicit spying during a routine review of the electronic surveillance agency’s activities over the past year.
“A small number of records suggested the possibility that some activities may have been directed at Canadians, contrary to the law,” Decary wrote in his report.
But Decary said he was unable to determine conclusively whether the snooping was legal or not because “a number of CSEC records relating to these activities were unclear or incomplete.”
“After (an) in-depth and lengthy review, I was unable to reach a definitive conclusion about compliance or non-compliance with the law.”
CSEC is forbidden from spying on Canadians no matter where they are in the world. It is also prohibited from eavesdropping on individuals within Canada.
Decary’s report comes amid ongoing concerns about massive global communications spy networks operated by the United States and Britain that have collected huge amounts of information about their own citizens.
Canada’s federal privacy czar has already said she is conducting a review to gauge whether spy agencies here are also targeting Canadians, and Decary’s findings will no doubt prompt louder calls for transparency and oversight of CSEC’s activities.
Decary has also completed a study into whether CSEC has pressed its American, British, Australian and New Zealand spy agency counterparts to respect long-standing promises not to snoop on Canadians.
That could shed light on what Canadian authorities knew about a massive telephone and Internet surveillance program in the U.S. called Prism.
However, it was not included in his report Wednesday because of an administrative error.
In tabling his report, Decary said he planned to step down from his position due to personal reasons, but that he would be staying on for another three months to ensure the appointment of a successor.
He indicated he planned to release his study of CSEC’s relationship with its foreign counterparts before he officially stepped down.
Decary also slammed the Conservative government for dragging its heels on implementing what he says are badly needed changes to the National Defence Act that will fix ambiguities in the legislation.
Following the Sept. 11, 2001 terrorist attacks in the United States, the federal government adopted the Anti-terrorism Act, which amended the National Defence Act and created legislative frameworks for both the commissioner and CSEC.
Repeated CSEC watchdogs have said clarification is needed to terms and definitions related to CSEC’s legislated authority, which would assist them in interpreting CSEC’s mandate and reviewing how it is applied.
“I started my mandate with the expectation that the legislative amendments to the National Defence Act proposed by my predecessors would soon be introduced in Parliament, but this has yet to happen,” Decary wrote in his report.
“I am deeply disappointed at the lack of action by the government, which is no longer in a minority situation, to address the ambiguities identified by my predecessors and myself.
“These amendments — as I have said many times before — would improve the provisions that were hastily enacted in the aftermath of September 11, 2001. The proposals to address the issues raised by commissioners should not, in my opinion, be controversial.”
