Communications Security Establishment Commissioner A n n u a l R e p o rt 2 O12-2 O13 Office of the Communications Security Establishment Commissioner

Communications
Security
Establishment
Commissioner
A n n u a l R e p o rt
2 O12-2 O13
Office of the Communications Security
Establishment Commissioner

Website: www.ocsec-bccst.gc.ca
© Minister of Public Works and
Government Services 2013
Cat. No. D95-2013
ISSN 1206-7490
Cover design: Cameron Fraser
June 2013
Minister of National Defence

Dear Minister:
Pursuant to subsection 273.63(3) of the National Defence Act, I am pleased
to submit to you my annual report on my activities and findings for the period of
April 1, 2012, to March 31, 2013, for your submission to Parliament.

Communications Security
Establishment Commissioner
The Honourable Robert Décary, Q.C.
Commissaire du Centre de la
sécurité des télécommunications
L’honorable Robert Décary, c.r.

ANNUAL REPORT 2012–2013 • www.ocsec-bccst.gc.ca
TABLE OF CONTENTS
Biography of the Honourable Robert Décary, Q.C. /2
Commissioner’s Message: A Summary at the End of My Term /3
Mandate of the Communications Security Establishment Commissioner /9
Commissioner’s Office /15
Impact of Commissioners’ Recommendations /16
Overview of 2012–2013 Findings and Recommendations /17
Highlights of the Six Reviews Submitted to the Minister in 2012–2013 /20
1. Review of certain foreign signals intelligence activities /20
2. CSEC assistance to CSIS under part (c) of CSEC’s mandate and
sections 12 and 21 of the CSIS Act /21
3. Review of CSEC IT security activities not conducted under a ministerial
authorization /26
4. Review of CSEC’s 2010–2011 and 2011–2012 foreign signals intelligence
ministerial authorizations /29
5. Annual review of a sample of disclosures of Canadian identity information to
Government of Canada clients /32
6. Annual review of incidents and procedural errors identified by CSEC in 2012
that affected or had the potential to affect the privacy of Canadians and
measures taken by CSEC to address them /34
ANNUAL REPORT 2012–2013 • www.ocsec-bccst.gc.ca
Complaints About CSEC Activities /36
Duty Under the Security of Information Act /36
Activities of the Commissioner’s Office /36
Work Plan — Reviews Under Way and Planned /38
In Closing /39
Annex A: Commissioner’s Office Review Program — Logic Model /41
Annex B: Excerpts from the National Defence Act and the Security of Information Act
Related to the Commissioner’s Mandate /43
Annex C: 2012–2013 Statement of Expenditures /47

BIOGRAPHY OF THE HONOURABLE
ROBERT DÉCARY, Q.C.
The Honourable Robert Décary, Q.C., was appointed Commissioner of
the Communications Security Establishment on June 18, 2010, for a
three-year term.
Commissioner Décary was born in Montréal in 1944. He received his
education at Collège Jean-de-Brébeuf (BA), at Université de Montréal
(LL.L.) and the University of London (LL.M.). He was called to the
Barreau du Québec in 1967 and named Queen’s Counsel in 1986.
In the course of a career dedicated to public office, the law and
journalism, he was Special Assistant to the Honourable Mitchell Sharp
(then Canada’s Secretary of State for External Affairs) (1970–1973),
Co-Director for Research on the Task Force on Canadian Unity, the
Pepin-Robarts Commission (1978–1979) and member of the French
Constitutional Drafting Committee of the federal Department of Justice
(1985–1990).
He practised law in Montréal, then in Gatineau, where, in the firm Noël,
Décary, he specialized in representing many law offices and the
Attorney General of Québec before the Supreme Court of Canada.
He has written a number of feature articles for Le Devoir and
La Presse, and has contributed to many legal journals and textbooks.
He is the author of Aide-mémoire sur la Cour suprême du Canada
(1988) and of Chère Élize (or The Long and the Short History of the
Repatriation) (1983).
He was a member of the Federal Court of Appeal from 1990 to 2009. In
2009, he was appointed arbitrator of the Court of Arbitration for Sport
in Lausanne, Switzerland, and in 2010 he became a member of the
Sport Dispute Resolution Centre of Canada.
2 ANNUAL REPORT 2012–2013
COMMISSIONER’S MESSAGE: A SUMMARY AT
THE END OF MY TERM
When the Minister of National Defence tables this annual report before
Parliament, I will have completed my three-year term as
Communications Security Establishment (CSE) Commissioner. For
personal reasons I declined an offer to renew my mandate. This message
affords me an opportunity to reflect on my time as the head of
the Office of the CSE Commissioner.
Reports and recommendations
During my tenure as Commissioner I submitted to the Minister of
National Defence 19 review reports, covering almost every aspect of the
activities of Communications Security Establishment Canada (CSEC),
including those carried out under ministerial authorizations or at the
request of law enforcement and security agencies. Among the activities
reviewed were those relating to the collection of foreign signals
intelligence, the protection of electronic information and information
infrastructures considered important by the Government of Canada, and
technical and operational assistance provided by CSEC, notably to the
Canadian Security Intelligence Service (CSIS). My reports contained
12 recommendations.
The integrity of the review process and the credibility of the
Commissioner’s office depend in large part on the follow-up by the
office of CSEC’s implementation of Commissioners’ recommendations.
I am pleased to note that since 1997, fully 92 percent (127 of 138) of
Commissioners’ recommendations in 74 classified reports submitted to
the Minister have been accepted and implemented, or are being
addressed. This means, inter alia that measures to protect the privacy of
Canadians are continually being adapted and refined to reflect the everchanging
technological and operational environment in which CSEC
must work. Indeed, some Commissioners’ recommendations have
resulted in CSEC suspending certain activities to re-examine how the
activities are conducted and, in other instances, have led to important
improvements to CSEC policies and practices.
www.ocsec-bccst.gc.ca 3
Maintaining healthy relations with CSEC
It strikes me as vital that an organization under independent review and
the review body itself cultivate a relationship built on respect and good
faith. By law, CSEC must take measures to protect the privacy of
persons in Canada and Canadians, wherever in the world they may be.
By law, the Commissioner must ensure that CSEC meets this obligation.
The protection of privacy is therefore a shared objective of our two
organizations. I also consider it essential that our relationship be one of
complementarity rather than superiority. With my years of experience, I
see the office more as CSEC’s conscience than as a sword of Damocles,
and I believe that CSEC increasingly sees it this way as well.
I can say with confidence that CSEC’s Chiefs during my time as
Commissioner, John Adams initially and then John Forster, have spared
no effort to instill within CSEC a culture of respect for the law and for
the privacy of Canadians. Both men have been honest in their dealings
with me, sometimes tough, but always acting in good faith.
Transparency
From the start of my time as Commissioner, I have sought to demystify,
within the unavoidable constraints of national security and public safety,
the culture of secrecy pervading the activities of security and intelligence
agencies. I believe I have succeeded to some degree, based on the
feedback that my annual reports have been more informative, more
understandable, and have brought clarity to many of the activities of my
office and of CSEC. Much remains to be done, but I believe that the ice
has been broken and that the security and intelligence agencies
understand they can speak more openly about their work without
betraying state secrets or compromising national security. The greater
the transparency, the less sceptical and cynical the public will be.
4 ANNUAL REPORT 2012–2013
It is in this context of transparency that the Commissioner’s office
organizes periodic luncheon meetings with outside experts in the fields
of national security and privacy. This facilitates greater understanding on
their part of how we go about our work, and we in turn learn about their
perspectives and interests.
Review bodies working cooperatively
My office and the Security Intelligence Review Committee (SIRC) have
similar functions but are subject to different legislation. CSEC and CSIS
also have different legislation but their respective laws authorize
cooperation between them, whereas the legislation governing my office
and SIRC does not contain similar provisions. This means that where
CSEC and CSIS cooperate and conduct joint activities, my office and
SIRC do not have an equivalent authority to conduct joint reviews.
Nonetheless, I believe a certain amount of collaboration among review
bodies is possible under existing legislation. For example, where I have
no mandate to follow-up, I may refer questions to SIRC that concern
CSIS. Activities beyond this, such as the sharing of special operational
information of the agencies, may require the intervention and approval
of Cabinet, and possibly also legislative change. Ideally, the law should
authorize, even encourage, such cooperation.
The creation of an over-arching structure that would group existing
review bodies under a single umbrella, proposed in a past commission of
inquiry report, does not strike me as a sensible solution at this point.
Before we create an additional super-bureaucracy, with the associated
burden and costs, we may be better advised to optimize existing review
bodies and facilitate their collaboration.
www.ocsec-bccst.gc.ca 5
Another form of cooperation among security and intelligence review
bodies has occurred over the past few years. My office has provided an
introductory training course for new employees of security and
intelligence review bodies, to explain various review methods and to
contribute to the development of more rigorous review practices.
Information sharing with international partners
The growth of international cooperation in the intelligence field has
important implications for privacy. We want to ensure that the foreign
countries and organizations with which Canada exchanges information
protect privacy with as much rigour as Canada exercises. This is not an
easy task. On the one hand, nations are sovereign and do not appreciate
interference in their internal affairs, particularly not in the area of
security. On the other hand, review bodies and mechanisms vary from
country to country. In the absence of international intelligence review
standards, I believe the best guarantee of the protection of the privacy of
Canadians in information exchanged with international partners lies in
promoting and ensuring strong and independent review bodies in those
countries. We are, in fact, already doing this to some extent.
For the past 15 years, the review bodies of a dozen countries, including
members of the “Five-Eyes” countries (Canada, the United States,
the United Kingdom, Australia and New Zealand), have attended a
biennial conference. These meetings have been a source of rewarding
exchanges and new inspiration. The sharing of perspectives and best
practices is a stimulating and enriching experience. As well, countries
for which independent intelligence review is in its early stages may be
invited to attend the conferences as observers and gain knowledge
about what is happening elsewhere. Canada hosted this conference in
May 2012.
6 ANNUAL REPORT 2012–2013
On the bilateral level, my office meets with representatives of foreign
review bodies and oversight committees. This past year, for example, I
met with members of a delegation of French parliamentarians seeking
information on the nature and methodology of Canadian review bodies. I
have also met with members of the Belgian Standing Intelligence
Agencies Review Committee and the British Intelligence and Security
Committee. It is my wish that these kinds of beneficial meetings occur
more frequently.
Cyber security and cyber attacks
One can no longer talk about security without mentioning cyber threats.
Barely a week goes by without headlines dealing with the risk of
breaches of public and private computer systems. CSEC, by its very
mandate, is called on to play a leadership role in protecting electronic
information and information infrastructures of importance to the
Government of Canada. CSEC may also lend its experience to assist
Public Safety Canada in its role of helping to protect critical
infrastructure that may involve the private sector.
It is unavoidable that CSEC may unintentionally intercept the private
communications of Canadians while conducting certain information
technology (IT) security activities. For this reason, in recent years, the
Commissioner’s office has increased its vigilance in this area,
completing a number of reviews, while others have been initiated; I have
no doubt that my successor will continue this work.
Proposals for legislative changes to the National Defence Act
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. 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
www.ocsec-bccst.gc.ca 7
enacted in the aftermath of September 11, 2001. The proposals to
address the issues raised by Commissioners should not, in my opinion,
be controversial.
The independence of the Office of the CSE Commissioner
The office attained its institutional and financial independence just
over five years ago when it received its own funding approved by
Parliament, and was no longer part of the budget of the Department of
National Defence. To emphasize this independence, 2011 marked the
first time the Commissioner issued his own news release to highlight
the tabling in Parliament of his annual report by the Minister of
National Defence. Financial independence, however, does have its
drawbacks. As a result of having its own appropriation, the
Commissioner’s office, a micro-agency with a budget of roughly two
million dollars, is subject to the same accounting and reporting
requirements as all departments, each with their individual budgets,
some into the billions. To my mind, this is an example of excessive
bureaucracy that has resulted in a significant level of reporting that is
of limited value to both the office and its stakeholders.
8 ANNUAL REPORT 2012–2013
MANDATE OF THE COMMUNICATIONS SECURITY
ESTABLISHMENT COMMISSIONER
My mandate under the National Defence Act consists of three key
functions:
1. reviewing CSEC activities to determine whether they
comply with the law;
2. conducting investigations I deem necessary in response
to complaints about CSEC; and
3. informing the Minister of National Defence (who is
accountable to Parliament for CSEC) and the
Attorney General of Canada of any CSEC activities that
I believe may not be in compliance with the law.
Under the Security of Information Act, I also have a mandate to receive
information from persons who are permanently bound to secrecy if they
believe it is in the public interest to release special operational information
of CSEC. (More information on the Commissioner’s responsibilities for
public interest defence is available on the office’s website.)
www.ocsec-bccst.gc.ca 9
CSEC’s mandate
When the Anti-terrorism Act came into effect on December 24, 2001, it added
Part V.1 to the National Defence Act, and set out CSEC’s three-part mandate:
• part (a) authorizes CSEC to acquire and use foreign signals intelligence in
accordance with the Government of Canada’s intelligence priorities;
• part (b) authorizes CSEC to help protect electronic information and
information infrastructures of importance to the Government of Canada; and
• part (c) authorizes CSEC to provide technical and operational assistance
to federal law enforcement and security agencies, including helping them
obtain and understand communications collected under those agencies’
own lawful authorities.
Reviewing CSEC activities
My mandate to review CSEC activities relates to CSEC collecting
foreign signals intelligence, protecting electronic information and
information infrastructures of importance to the Government of Canada,
and assisting federal law enforcement and security agencies.
The purpose of my review mandate is:
• to determine whether the activities conducted by CSEC under
ministerial authorization are, in fact, those authorized by the
Minister of National Defence, and to verify that the conditions for
authorization required by the National Defence Act are met;
• to determine whether CSEC complies with the law and, if I
believe that it may not be complying, to report this to the
Minister of National Defence and to the Attorney General
of Canada;
• to verify that CSEC does not direct its foreign signals intelligence
and IT security activities at Canadians; and
• to promote the development and effective application of
satisfactory measures to protect the privacy of Canadians in all the
activities CSEC undertakes.
Ministerial authorizations
The National Defence Act allows the Minister of National Defence to
give CSEC written ministerial authorization to unintentionally intercept
private communications while collecting foreign signals intelligence or
10 ANNUAL REPORT 2012–2013
Protection of Canadians
CSEC is prohibited by law from directing its foreign signals intelligence
collection and IT security activities at Canadians — wherever they might be in
the world — or at any person in Canada.
while protecting computer systems of the Government of Canada from
mischief, unauthorized use or interference. In each case, the law
specifies the conditions under which a ministerial authorization can be
issued. Ministerial authorizations relate to an activity or class of
activities specified in the authorizations — that is, to a specific method
of acquiring foreign signals intelligence or of protecting computer
systems (the how); however the authorizations do not relate to a specific
individual or subject (the whom or the what). The law also directs the
CSE Commissioner to review activities carried out under a ministerial
authorization and to report annually to the Minister on the review. (More
information on ministerial authorizations as well as on the authorities for
and limitations on CSEC activities are available on the office’s website.)
Selection of activities for review
I use a risk-based and preventative approach to my reviews. I prioritize
CSEC activities where risk is greatest for potential non-compliance with
the law, including for risks to the privacy of Canadians, by considering,
among other factors:
• the controls placed by CSEC on the activity to ensure compliance
with legal, ministerial and policy requirements;
• whether the activity does, or has the potential to, involve private
communications or information about Canadians;
• whether the activity is new, has changed significantly, or has had a
lengthy period elapse since its last in-depth review;
• whether there have been significant changes to the authorities or
technologies relating to the activity;
• whether Commissioners have made findings or recommendations
relating to the activity that require follow-up; and
• issues arising in the public domain.
www.ocsec-bccst.gc.ca 11
Review methodology and criteria
My reviews of activities are ex post, that is, of activities that have
occurred in the past. However, reviews always include an examination
of CSEC’s ex ante reasons for conducting the activities — to confirm
that CSEC’s justifications for the activities are lawful and within
CSEC’s mandate. In conducting a review, my office examines CSEC’s
hard-copy and electronic information and records, as well as CSEC’s
policies and procedures and legal advice received from Justice Canada.
My employees request briefings and demonstrations of specific
activities, interview CSEC managers and employees, and observe CSEC
operators and analysts first hand to verify how they conduct their work.
My employees test information obtained against the contents of CSEC’s
systems and databases.
Each review includes an assessment of CSEC activities against a
standard set of criteria, described below, consisting of legal
requirements, ministerial requirements, and policies and procedures.
Each review may have additional criteria added, as appropriate.
Legal requirements: I expect CSEC to conduct its activities
in accordance with the National Defence Act,
the Canadian Charter of Rights and Freedoms, the Privacy Act,
the Criminal Code, and any other relevant legislation, and in
accordance with Justice Canada advice.
Ministerial requirements: I expect CSEC to conduct its
activities in accordance with ministerial direction, following all
requirements and limitations set out in a ministerial
authorization or directive.
12 ANNUAL REPORT 2012–2013
Information about Canadians: any personal information (as described in the
Privacy Act) about a Canadian, or business information about a Canadian
corporation.
Policies and procedures: I expect CSEC to have appropriate
policies and procedures in place to guide its activities and to
provide sufficient direction on legal and ministerial
requirements including the protection of the privacy of
Canadians. I expect CSEC employees to be knowledgeable
about and comply with policies and procedures. I also expect
CSEC to have an effective compliance validation framework
and activities to ensure the integrity of operational activities is
maintained, including appropriately accounting for important
decisions and information relating to compliance and the
protection of the privacy of Canadians.
My classified review reports document CSEC activities and practices
and contain findings relating to the above-noted criteria. These reports
may also disclose the nature and significance of deviations from the
criteria. In some cases, I make recommendations to the Minister that are
aimed at correcting discrepancies between CSEC activities and the
expectations established by the review criteria.
The logic model in Annex A provides a flow chart of the review
program (p. 41).
Horizontal reviews
Horizontal reviews examine processes common to all CSEC foreign
signals intelligence collection methods or to IT security activities.
For example, the processes by which CSEC:
• identifies, selects and directs its activities at foreign entities of
intelligence interest located outside Canada or at threats to
Government of Canada computer systems;
• uses, shares, reports, retains or disposes of intercepted
information; or
• takes measures to protect private communications intercepted
unintentionally and to protect information about Canadians.
www.ocsec-bccst.gc.ca 13
Conducting investigations
My mandate includes undertaking any investigation I deem necessary in
response to a written complaint — for example to determine whether
CSEC has engaged, or is engaging, in unlawful activity or is not taking
sufficient measures to protect the privacy of Canadians. (More
information on the Commissioner’s responsibilities for conducting
investigations into complaints is available on the office’s website.)
Informing the Minister
Under my mandate to keep the Minister of National Defence informed, I:
• forward the results of my reviews, in classified reports, to the
Minister; and
• submit an unclassified report to the Minister on my activities each
year, which the Minister must then table in Parliament. This is the
17th annual report.
While it is my primary duty to report any non-compliance by CSEC, a
necessary element of my mandate also includes informing the Minister
of any activities that I believe might present, or have the potential to
present, a risk of non-compliance, such as an unlawful interception of a
private communication or other invasion of the privacy of a Canadian.
A number of my reports have included recommendations aimed at
prevention. It is a goal of the Commissioner’s office to strengthen CSEC
practices that contribute to compliance and incorporate measures that
protect the privacy of Canadians.
Independence
While I submit my reports to the Minister of National Defence, who is
responsible for CSEC, my office is completely independent and receives
its own funding from Parliament. My mandate is supported by the
powers I have under the Inquiries Act, including the power of subpoena,
to ensure access to all CSEC information and employees.
14 ANNUAL REPORT 2012–2013
Annex B contains the text of the relevant sections of the
National Defence Act and the Security of Information Act relating to
my role and mandate as CSE Commissioner (p. 43). (Information on
the history of the Office of the CSE Commissioner is available on the
office’s website.)
COMMISSIONER’S OFFICE
Last year, work was completed on the expansion of the physical space of
the office, to provide sufficient accommodation for existing functions,
and for additional responsibilities resulting from the office receiving its
own appropriation from Parliament. The expansion will allow me to hire
two additional review officers to enable adequate review of CSEC,
which has experienced significant growth. I have been supported in my
work by a staff of eight, together with a number of subject-matter
experts, as required. In 2012–2013, my office’s expenditures were
$2,285,718, which is within the overall funding approved by Parliament.
Annex C provides the 2012–2013 Statement of Expenditures for the
Office of the CSE Commissioner (p. 47).
www.ocsec-bccst.gc.ca 15
CSE Commissioner
The Commissioner is an independent statutory officer and is not subject to
general direction from the Prime Minister, the Minister of National Defence or
any other ministers on how to carry out his mandate. The Commissioner assists
the Government of Canada in its control of CSEC by providing advice to the
Minister to support the Minister’s decision making and accountability for CSEC.
The Commissioner’s classified reports to the Minister and unclassified annual
report, through the Minister to Parliament and the public, state whether CSEC
has acted lawfully and the extent to which it protected the privacy of
Canadians in the conduct of its activities.
IMPACT OF COMMISSIONERS’
RECOMMENDATIONS
Since 1997, my predecessors and I have submitted to
the Minister of National Defence 74 classified review reports. In total,
the reports contained 138 recommendations. CSEC has accepted and
implemented or is working to address 92 percent (127 out of 138) of
these recommendations.
Commissioners monitor how CSEC addresses recommendations and
responds to negative findings as well as areas for follow-up identified in
past reviews. This past year, CSEC advised my office that work had
been completed in response to 14 past recommendations. Notably, CSEC
implemented recommendations by:
• providing support to the Minister of National Defence to update
certain ministerial directives;
• updating general memoranda of understanding for the exchange
of information and operational cooperation with CSIS and
Foreign Affairs and International Trade Canada;
• committing to report to the Minister of National Defence certain
information (that cannot be publicly identified for security
reasons), as a measure to protect the privacy of Canadians and to
support the Minister in his accountability for CSEC;
• promulgating a revised policy for operational assistance to law
enforcement and security agencies under part (c) of CSEC’s
mandate, including guidance on the retention and disposition of
records relating to any assistance;
• promulgating a revised procedure that defines risk and risk
mitigation for certain foreign signals intelligence collection
activities as well as adopting a risk management framework for
the planning and approval of these activities; and
16 ANNUAL REPORT 2012–2013
• launching a new secure system with other government
departments and agencies for handling and tracking requests for
and disclosures of suppressed Canadian identity information.
These actions by CSEC demonstrate that review works. The
Commissioner’s office will examine the impact of these enhancements
on compliance and privacy protection in future reviews. In addition, the
Commissioner’s office is monitoring six active recommendations that
CSEC is working to address. The Minister’s responses to two
recommendations of this year were not received by the time this report
was completed.
The office’s website provides a complete list of the 74 classified review
reports submitted to the Minister of National Defence.
OVERVIEW OF 2012–2013 FINDINGS AND
RECOMMENDATIONS
During the 2012–2013 reporting year, I submitted six reports to the
Minister of National Defence on my review of CSEC activities.
These reviews were conducted under two areas of my mandate:
• ensuring CSEC activities are in compliance with the law — as set
out in paragraph 273.63(2)(a) of the National Defence Act; and
• ensuring CSEC activities under a ministerial authorization are
authorized — as set out in subsection 273.65(8) of the
National Defence Act.
www.ocsec-bccst.gc.ca 17
The results
Each year, I provide an overall statement on my findings about the
lawfulness of CSEC activities. With the exception of one review
described below — in which I was unable to reach a definitive
conclusion about compliance or non-compliance with the law for certain
CSEC foreign signals intelligence activities — all of the activities of
CSEC reviewed this past year complied with the law.
As well, this year, I made four recommendations to promote
compliance with the law and to strengthen privacy protection. The
recommendations, which are described in the following review
summaries, relate to reinforcing policy guidance and expanding an
existing practice on privacy protection to other circumstances, as well
as providing the Federal Court of Canada with certain additional
evidence about the nature and extent of the assistance CSEC may
provide to CSIS.
Additionally, I forwarded to the Chair of SIRC, for information,
certain general points relating to CSIS that arose out of the
recommendations I made and that SIRC may wish to examine as it
deems appropriate. This demonstrates how existing review bodies
can, in the spirit of the recommendations of the commission of
inquiry led by the Honourable Justice Dennis O’Connor, collaborate
under existing legislation in the conduct of reviews of activities
involving more than one security and intelligence agency.
Two reviews this year — the review of certain foreign signals
intelligence activities and the review of CSEC assistance to CSIS
under part (c) of CSEC’s mandate and sections 12 and 21 of the
Canadian Security Intelligence Service Act (CSIS Act) — identified
the absence of certain historical information in a CSEC system and
database relating to foreign signals intelligence collection. This system
and database support the process by which CSEC determines that
entities of foreign intelligence interest are indeed foreign and located
18 ANNUAL REPORT 2012–2013
outside of Canada, as required by the National Defence Act. The
absence of the information limited my ability to assess the lawfulness
of the CSEC activities in question, and could also affect review of
other activities of CSEC. Due to the seriousness of this development,
I directed my employees to conduct an in-depth examination of the
issue to determine the implications and advise on a resolution. This
issue added to the time required to complete these two reviews. It is
encouraging that CSEC has already taken action and continues to do
so to ensure the availability of information that is required for
accountability and to demonstrate compliance with the law. The
Commissioner’s office will monitor developments.
In last year’s annual report, I expressed frustration about a reduction in
CSEC support to my office resulting in excessive delays in being able to
proceed with some reviews. CSEC has taken steps to correct this situation
and I am optimistic that these will result in a productive year ahead.
www.ocsec-bccst.gc.ca 19
HIGHLIGHTS OF THE SIX REVIEWS SUBMITTED TO
THE MINISTER IN 2012–2013
1. Review of certain foreign signals intelligence
activities
Background
I examined CSEC’s acquisition, use and exchange of information
relating to certain foreign intelligence activities that occurred a number
of years ago.
Findings and recommendations
I had no concern with respect to the majority of the CSEC activities
reviewed. However, a small number of records suggested the possibility
that some activities may have been directed at Canadians, contrary to
law. A number of CSEC records relating to these activities were unclear
or incomplete. After in-depth and lengthy review, I was unable to reach a
definitive conclusion about compliance or non-compliance with the law.
In the process of review, I found that a number of CSEC records relating
to exchanges of information with CSIS were sometimes unclear, which
led me to recommend that CSEC promulgate policy guidance respecting
how to clearly and consistently communicate with its partners about
what entity the activities are being directed at. As well, I recommended
that CSEC ensure that its foreign intelligence analysts are
knowledgeable about and follow existing policy guidance, introduced
since the period under review, respecting their responsibilities for
determining the foreign status of an entity and the justifications for
directing activities at that entity. Following the completion of my review,
I forwarded to the Chair of SIRC, for information, certain general points
relating to CSIS that arose out of the recommendations I made.
20 ANNUAL REPORT 2012–2013
At my direction, my office has started a review of other more recent
foreign intelligence activities that includes follow-up on matters raised
in this review, and will seek to determine whether developments in
CSEC policies and procedures since the period under review have led to
an improvement in the clarity of language in CSEC information
exchanges with CSIS.
Conclusion
As of the end of the 2012–2013 reporting period, March 31, 2013, I am
awaiting the Minister’s response to the two recommendations. The
responses will be noted in next year’s annual report.
2. CSEC assistance to CSIS under part (c) of
CSEC’s mandate and sections 12 and 21 of
the CSIS Act
Background
In 2007, CSIS sought from the Federal Court of Canada a warrant to
assist in the investigation of threat-related activities that, it was believed,
individuals would engage in while travelling outside of Canada. The
Honourable Justice Edmond Blanchard held that the Court lacked the
jurisdiction to authorize intrusive investigative activities by CSIS
employees outside of Canada (Re CSIS Act, 2008 FC 301).
In 2009, in X(Re), 2009 FC 1058, the Court was asked to revisit the
question of jurisdiction and to distinguish Justice Blanchard’s reasoning
on the basis of a more complete description of the facts relating to the
activities necessary to permit the interception and a different legal
argument concerning how the method of interception was relevant to the
jurisdiction of the Court. The Honourable Justice Richard Mosley was
satisfied that there were sufficient factual and legal grounds to
distinguish the application from that which was before Justice Blanchard
and he issued the first warrant permitting CSIS to intercept the
www.ocsec-bccst.gc.ca 21
communications of Canadians located outside Canada using the
interception capabilities of CSEC. The application was supported by the
affidavit evidence of an employee of CSEC that described the agency’s
interception capabilities and how communications would be intercepted
from within Canada.
Paragraph 273.64(1)(c) of the National Defence Act authorizes CSEC
to provide technical and operational assistance to federal law
enforcement and security agencies in the performance of their lawful
duties. This assistance includes CSEC supporting CSIS with the
interception of Canadians’ communications if CSIS has a judicially
authorized warrant issued under section 21 of the CSIS Act. Pursuant
to subsection 273.64(3) of the National Defence Act, CSEC is subject
to any limitations imposed by law on the agency to which it is
providing assistance — for example, any conditions imposed by a
judge in a warrant. When CSEC provides operational assistance to
CSIS, CSEC becomes the agent of CSIS. CSIS is de jure the owner of
the information and the intercepted communications relating to the
subject of the warrant.
In X(Re), Justice Mosley stated:
Canada has given CSE[C] a mandate to collect foreign
intelligence including information from communications and
information technology systems and networks abroad. It [CSEC]
is restricted as a matter of legislative policy from directing its
activities against Canadians or at any person within Canada, but
it is not constrained from providing assistance to security and
law enforcement agencies acting under lawful authority such as
a judicial warrant. CSIS is authorized to collect threat-related
information about Canadian persons and others and, as
discussed above, is not subject to territorial limitation.
Where the statutory prerequisites of a warrant are met, including
prior judicial review, reasonable grounds and particularization of
the targets, the collection of the information by CSIS with
22 ANNUAL REPORT 2012–2013
CSE[C] assistance, as proposed, falls within the legislative
scheme approved by Parliament and does not offend the Charter.
(X(Re) at paragraphs 75-76)
The objectives of my review were to acquire detailed knowledge of and
to document CSEC’s assistance to CSIS and to assess whether CSEC
activities complied with the law, including with the terms of the warrants
issued to CSIS, and any privacy protections found therein. CSEC’s
assistance to CSIS under the warrants may include use of Canadian
identity information and the interception of the communications of
Canadians. CSEC’s collection, as defined in the warrant, may impact on
the privacy of Canadians.
I examined CSEC assistance to CSIS in support of a number of the first
warrants of this kind relating to counter-terrorism. Specifically, as part
of assessing compliance with the law and privacy protection, for the
warrants examined, I verified that:
• CSEC had a copy of the warrant and had clear and sufficient
information about the assistance sought by CSIS;
• the communications targeted by CSEC for CSIS were only those
communications referred to in the warrants;
• the communications were not targeted before the warrants came
into force and were no longer targeted once the warrants expired;
• CSEC targeted the subjects of the warrants only while they were
believed to be outside Canada;
• CSEC targeted only the types of communications and information
that were authorized in the warrants to be intercepted or obtained; and
• CSEC complied with any other limitations imposed by law on
CSIS, for example, any conditions in the warrants.
www.ocsec-bccst.gc.ca 23
Findings and recommendations
During the period under review, CSEC responded appropriately to two
related privacy incidents it identified involving the unintentional release
of Canadian identity information of some of the subjects of the warrants.
In fact, CSEC has already clarified appropriate internal processes for the
conduct of certain activities and reminded its employees of their
information stewardship responsibilities. This should help prevent
similar incidents.
I questioned CSEC about another incident involving the interception of
communications for CSIS for a small number of days after a particular
warrant had expired. I accepted CSEC’s explanation for this incident,
which was that it resulted from unintentional human error. CSEC also
confirmed that these intercepted communications were destroyed and
that CSIS did not receive them. I am satisfied that CSEC documented
this incident and reminded its employees of proper process to help
prevent similar errors.
During the period under review, operational policies and procedures of
general application to CSEC’s assistance in support of these warrants
and related activities were in place and provided direction to CSEC
employees respecting compliance with the law and the protection of the
privacy of Canadians. Subsequent to the period under review, CSEC
issued specific guidance for the conduct of this assistance and activities.
Generally, CSEC employees interviewed were well aware of the policies
and procedures and demonstrated knowledge of their respective
responsibilities. Interviews with CSEC managers, team leaders and other
employees showed that managers routinely monitored the assistance and
related activities for compliance with governing authorities.
In addition to a detailed examination of CSEC activities under the
warrants, I considered and consulted my independent counsel, who is
also a privacy law expert, on general questions of law relating to this
subject. I made two recommendations to the Minister to help ensure
24 ANNUAL REPORT 2012–2013
CSEC assistance to CSIS is consistent with the authorities and
limitations of the warrants, and to enhance the measures in place to
protect the privacy of Canadians. Specifically, I recommended that:
1. CSEC discuss with CSIS the expansion of an existing
practice to protect privacy to other circumstances; and
2. CSEC advise CSIS to provide the Federal Court of Canada
with certain additional evidence about the nature and extent
of the assistance CSEC may provide to CSIS.
I found that CSEC practices relating to its assistance to CSIS and related
activities were consistent with the general requirements in the
“Accountability Framework” and “Privacy of Canadians” ministerial
directives to CSEC, specifically to comply with the law and to take
measures to ensure that information was lawfully obtained and handled
in a manner consistent with the Canadian Charter of Rights and
Freedoms and the Privacy Act.
Conclusion
While I made two recommendations to the Minister to help ensure
CSEC assistance to CSIS is consistent with the law and to enhance
privacy protection, I concluded that CSEC conducted its activities in
accordance with the law and ministerial direction, and in a manner that
included measures to protect the privacy of Canadians. The Minister
accepted and CSEC has addressed the recommendations.
Following the completion of my review, I forwarded to the SIRC Chair,
for information, certain general points relating to CSIS that arose out of
the two recommendations I made and that SIRC may wish to examine as
it deems appropriate. Subsequently, CSEC advised me that it raised the
recommendations — which relate to matters that are controlled by CSIS,
or require agreement from CSIS — with CSIS.
www.ocsec-bccst.gc.ca 25
3. Review of CSEC IT security activities not
conducted under a ministerial authorization
Background
The National Defence Act mandates CSEC to provide advice, guidance
and services to Government of Canada departments and agencies as well
as to other owners of IT systems to help ensure the protection of
electronic information and of information infrastructures of importance
to the Government of Canada (paragraph 273.64(1)(b)).
During the period under review, the Government of Canada reorganized
its cyber defence efforts. CSEC became the primary point of contact for
cyber incidents faced by Government of Canada departments and
agencies. Public Safety Canada is the primary point of contact for cyber
incidents affecting non-Government of Canada critical infrastructure
sectors. A further distinction is that CSEC is responsible for
sophisticated cyber threats, such as those stemming from foreign state
actors, while Public Safety Canada responds to less sophisticated threats,
for example, those relating to known vulnerabilities in commercially
available computer software.
I examined certain IT security activities conducted by CSEC to detect,
analyse and mitigate cyber threats. CSEC does not undertake these
activities under a ministerial authorization as it does not intercept
communications. Rather, CSEC uses information acquired by the system
owners — under their Criminal Code authorities and, for Government of
Canada system owners, also under their Financial Administration Act
authorities — and disclosed to CSEC. These authorities permit the
interception of private communications by authorized persons when the
interception is reasonably necessary to protect computer systems from
mischief and unauthorized use.
26 ANNUAL REPORT 2012–2013
The objectives of my review were to assess whether CSEC complied
with the law and the extent to which CSEC protected the privacy of
Canadians in carrying out the activities. In addition to acquiring detailed
knowledge about the activities, I examined:
• the legislative and policy framework for the activities;
• CSEC organizational changes;
• technologies, databases and systems used for the activities;
• the amount and treatment of private communications and
Canadian identity information acquired by the activities as well as
a sample of those private communications and Canadian identity
information used by CSEC; and
• agreements in place with Government of Canada departments and
agencies.
I examined activities conducted between April 1, 2009, and
March 31, 2011, including a more detailed examination of activities
and associated reporting for a number of the departments and agencies
assisted by CSEC during that time. Additionally, records were examined
to verify that system owner information retained by CSEC was done so
under an appropriate legal authority. My review also included an
examination of CSEC’s responses to areas for follow-up identified in a
2009 study by former Commissioner Gonthier.
www.ocsec-bccst.gc.ca 27
Private Communication: “any oral communication, or any
telecommunication, that is made by an originator who is in Canada or is
intended by the originator to be received by a person who is in Canada
and that is made under circumstances in which it is reasonable for the
originator to expect that it will not be intercepted by any person other than
the person intended by the originator to receive it, and includes any radiobased
telephone communication that is treated electronically or otherwise
for the purpose of preventing intelligible reception by any person other than
the person intended by the originator to receive it” (section 183 of the
Criminal Code).
Findings
I found that CSEC conducted its activities in accordance with the law
and ministerial direction and I had no questions about the reporting and
retained information examined.
I suggested that CSEC could enhanse its ability to demonstrate that it
has measures to protect the privacy of Canadians by recording the return
or deletion of irrelevant information acquired by a system owner and
shared with CSEC. Notwithstanding this suggestion, I found that these
IT security activities contained satisfactory measures to protect the
privacy of Canadians.
During the period under review, operational policies and procedures
of general application were in place to provide general direction
respecting compliance with the law and the protection of privacy of
Canadians. However, there was no specific operational guidance in
place for these activities. It is a positive development that, subsequent
to the period under review, CSEC issued a specific policy for the
conduct of these activities.
Some CSEC employees who were interviewed were unable to cite
certain policies, but were aware of the rules governing their activities. In
addition, CSEC managers who were interviewed routinely and closely
monitored the activities to ensure that their employees complied with
governing authorities. Based on the records examined, the answers
provided to questions during interviews and CSEC’s policy compliance
validation activities, the activities reviewed complied with relevant
policies and procedures.
Conclusion
My review report contained no recommendations. However, regular indepth
reviews will continue to be conducted of IT security activities not
conducted under a ministerial authorization to verify compliance with
the law, and the extent to which CSEC protects the privacy of Canadians
in carrying out the activities.
28 ANNUAL REPORT 2012–2013
4. Review of CSEC’s 2010–2011 and 2011–2012
foreign signals intelligence ministerial
authorizations
Background
Subsection 273.65(8) of the National Defence Act requires the
Commissioner to review CSEC activities carried out under ministerial
authorizations “to ensure they are authorized and report annually to the
Minister [of National Defence] on the review.” A regular combined
review of the foreign signals intelligence ministerial authorizations is
one way that Commissioners fulfill this part of their mandate. This
year’s review covered two fiscal years: I examined the five foreign
signals intelligence ministerial authorizations in effect from
December 1, 2010, to November 30, 2011, relating to five activities
or classes of activities, as well as the six foreign signals intelligence
ministerial authorizations in effect from December 1, 2011, to
November 30, 2012, relating to six activities or classes of activities.
The purpose of this review was to:
1. ensure that the activities conducted under the ministerial
authorizations were authorized and that the Minister
was satisfied that the four conditions for authorization
required by paragraphs 273.65(2)(a) to (d) of the
National Defence Act were met;
2. identify any significant changes to the ministerial
authorization documents themselves or to CSEC’s
activities described in the ministerial authorizations;
3. assess the impact, if any, of these changes on the risk of
non-compliance and on the risk to privacy, and, as a result,
identify any subjects requiring follow-up review; and
www.ocsec-bccst.gc.ca 29
4. examine, for compliance with the law, a sample of my
choosing of any resulting private communications
unintentionally intercepted by CSEC while conducting
foreign signals intelligence collection activities under the
ministerial authorizations.
Findings
I found that the activities conducted under the 2010–2011 and the
2011–2012 foreign signals intelligence ministerial authorizations were
authorized.
For each of the 11 foreign signals intelligence collection activities, I
examined certain key information relating to interception and to the
privacy of Canadians, to permit comparison of the activities and to
identify any significant changes or trends over time. I found no
significant changes to the scope or operation of any of the activities to
require a follow-up in-depth review of specific activities. The
2010–2011 and 2011–2012 foreign signals intelligence ministerial
authorizations did not contain any significant changes from the previous
year and CSEC did not make any significant changes to the technologies
used for these activities.
Changes made by CSEC in 2010–2011 and in 2011–2012 to its
operational policies for foreign signals intelligence collection activities
clarified authorities and practices and enhanced the protection of the
privacy of Canadians.
30 ANNUAL REPORT 2012–2013
Private communications
The Commissioner monitors the number of private communications
unintentionally intercepted and verifies how CSEC treated and used these
communications. The Commissioner is able to review all of the private
communications that CSEC uses and retains.
I also reviewed a sample of unintentionally intercepted private
communications that CSEC recognized and retained, and that CSEC
did not use in its reports. I found that in both 2010–2011 and
2011–2012, CSEC retained only those private communications
essential to international affairs, defence or security, as required by
paragraph 273.65(2)(d) of the National Defence Act. Again this year,
the proportion of these communications remained very small and
CSEC destroyed most of them. In addition, a new tool is being
developed that will assist CSEC analysts in identifying intercepted
communications that might be private communications. The
Commissioner’s office will examine the impact of this new tool on
compliance and privacy protection in a future review.
In last year’s report, I indicated that certain information about
intercepted communications involving CSEC’s international partners
was not readily available. It is positive that, while not a requirement in
the ministerial authorizations, CSEC has recognized the importance of
reporting this information to the Minister. The Commissioner’s office
will monitor developments.
It is also a positive development that, while not a requirement of a
particular ministerial authorization, CSEC has agreed to report to the
Minister certain information relating to privacy. This measure to protect
the privacy of Canadians will support the Minister in his accountability
for CSEC. It also satisfies an outstanding recommendation I made in
2010–2011. The Minister had initially supported CSEC’s rejection of
this recommendation. However, after further examination, I maintained
my recommendation and so informed the Minister. CSEC reconsidered
its initial position and advised the Minister that it would undertake to
implement the recommendation.
Conclusion
I made no recommendations.
www.ocsec-bccst.gc.ca 31
5. Annual review of a sample of disclosures
of Canadian identity information to
Government of Canada clients
Background
Canadian identity information may be included in CSEC’s foreign
signals intelligence reports if it is required to understand or use the
foreign intelligence. However, any information that identifies a
Canadian must be suppressed in the reports — that is, replaced by a
generic reference such as “a named Canadian.” When receiving a
subsequent request for disclosure of the details of the suppressed
information, CSEC must verify that the requesting client has both the
authority and operational justification for obtaining the Canadian
identity information. Only then may CSEC provide that information.
My officials selected and examined a sample of approximately 20 percent
of the total number of disclosures by CSEC to Government of Canada
agencies or departments during the period October 2011 to June 2012.
The sample included disclosures made to all of the departments that had
requested Canadian identity information during the period under review.
My officials examined: the requests documenting the clients’ authority and
justification for obtaining the Canadian identity information; associated
CSEC foreign signals intelligence reports; and the actual disclosures of
Canadian identity information.
Findings
Based on my assessment of the information reviewed and the interviews
conducted, CSEC conducted its disclosure activities in compliance with
the law. Operational policies and procedures are in place and provide
sufficient direction to CSEC employees respecting the protection of the
privacy of Canadians. CSEC employees were knowledgeable about, and
acted in accordance with, the policies and procedures.
32 ANNUAL REPORT 2012–2013
In addition, in response to a recommendation made by former
Commissioner Cory in his 2010 report, in 2012, CSEC started using a
new on-line secure system to process requests for and disclosures of
Canadian identity information. CSEC provided my employees with a
demonstration of the system, which is currently used with CSEC’s
principal clients. CSEC intends to extend its use to other partners
starting in the coming fiscal year. According to CSEC, the system has
improved the timeliness of responses and resulted in better service to
its clients. It enhances accountability by improving the tracking and
retrieval of requests for and disclosures of Canadian identity
information and it contains a number of features to help ensure the
protection of the privacy of Canadians.
Conclusion
My review did not result in any recommendations. CSEC conducted its
disclosure activities in a thorough manner; all of the requests reviewed
were authorized, justified and well documented.
Should there be an instance of non-compliance in CSEC disclosure of
Canadian identity information, the potential impact on the privacy of
Canadians could be significant. For this reason, annual reviews of a
sample of disclosures will continue. Next year’s sample will include a
detailed examination of the use of the new system, as well as a sample
of disclosures of Canadian identity information to CSEC’s
international partners.
www.ocsec-bccst.gc.ca 33
6. Annual review of incidents and procedural
errors identified by CSEC in 2012 that
affected or had the potential to affect the
privacy of Canadians and measures taken
by CSEC to address them
Background
CSEC maintains a central file describing any operational incidents
that did or could have an impact on the privacy of Canadians. CSEC
records in this file any incidents it identifies that put at risk the
privacy of a Canadian in a manner that runs counter to or is not
provided for in its operational policies. CSEC policy requires its
foreign signals intelligence and IT security employees to report and
document privacy incidents in order to demonstrate compliance with
legal requirements and CSEC policies, and to prevent further
incidents. Incidents could include, for example, the inadvertent
inclusion of Canadian identity information in a report, or mistakenly
sharing a report with the wrong recipient.
Horizontal and in-depth reviews of CSEC activities include an
examination of any privacy incidents and procedural errors relating to
the subject under review and, where appropriate, are reported in the
summaries of those reviews. My employees are vigilant during reviews
about identifying these types of incidents, so we can confirm whether
CSEC also identified and addressed them.
The objectives of this annual review are to: acquire knowledge of the
incidents and procedural errors in 2012 and associated actions; and
inform development of the Commissioner’s work plan, by determining if
there are any systemic issues or issues about compliance with the law or
the protection of the privacy of Canadians that should be the subject of
follow-up review. The review of these privacy incidents and procedural
errors also assists in evaluating how CSEC monitors and validates that
its activities adhere to its operational policies.
34 ANNUAL REPORT 2012–2013
Findings
I examined all foreign signals intelligence and IT security privacy
incidents and procedural errors recorded by CSEC in calendar year
2012, and the subsequent actions taken by CSEC to correct them.
There was a very small number of procedural errors and I agreed with
CSEC’s assessment that these occurrences were minor and did not
amount to privacy incidents.
Based my review of CSEC’s records as well as independent verification
by my office of reports in a CSEC database, I am satisfied that CSEC
took appropriate corrective actions in response to the small number of
privacy incidents it recorded.
I was particularly pleased with certain remedial actions taken by CSEC
to prevent future similar privacy incidents. For example, CSEC is now
conducting a monthly review of its central file to ensure that all required
remedial activities have been completed or are being pursued. As well,
CSEC reminded its employees of the requirement to report an incident
immediately. CSEC also established a process to send reminders to its
employees to make sure that certain information in its systems is up to
date and compliant with existing authorities.
Conclusion
My review of the privacy incidents and procedural errors identified by
CSEC in 2012 did not result in any recommendations. My review did
not reveal any systemic deficiencies or issues that require follow-up
review. Annual reviews will continue to be conducted of the privacy
incidents and procedural errors identified by CSEC.
www.ocsec-bccst.gc.ca 35
COMPLAINTS ABOUT CSEC ACTIVITIES
In 2012–2013, my office was contacted by a number of individuals who
were seeking information or expressing concern about CSEC activities.
However, the inquiries were assessed as outside of the Commissioner’s
mandate or as lacking credibility. No complaints about CSEC activities
warranted investigation by the Commissioner. (More information on the
complaints process is available on the office’s website.)
DUTY UNDER THE SECURITY OF INFORMATION ACT
I have a duty under the Security of Information Act to receive
information from persons who are permanently bound to secrecy seeking
to defend the release of special operational information — such as
certain information relating to CSEC activities — on the grounds that it
is in the public interest. No such matters were reported to me in
2012–2013. (More information on the Commissioner’s responsibilities
under the Security of Information Act is available on the office’s website.)
ACTIVITIES OF THE COMMISSIONER’S OFFICE
In last year’s annual report, in an attempt to clarify misconceptions and to
better inform the public about CSEC’s and my mandates and activities, I
provided more detail than ever before on CSEC’s activities, what
Commissioners review, how reviews are carried out, and the impact of
reviews. Work is ongoing to improve the website, which contains detailed
information on the activities of the Commissioner’s office. Of course, the
Commissioner provides the Minister of National Defence with additional
classified information — which cannot be disclosed in this public report
or on the website — so that the Minister can be fully aware of the
Commissioner’s review of CSEC activities. Last year, employees of my
office and I also met with a number of academics and other professionals
interested in review of security and intelligence agencies to talk about my
role and work and their views on effective review. In addition, my office
made presentations to five cohorts of new CSEC employees attending
36 ANNUAL REPORT 2012–2013
CSEC’s foundational learning course, which is a requirement for every
new employee. These presentations provide an introduction to what it is I
and my office do, how we go about our work, and how it may affect them
as CSEC employees.
During the past year, CSEC provided a number of detailed briefings to
employees of my office as part of the conduct of reviews. CSEC also
provided an overview briefing on recent and important operational,
policy and organizational changes and issues. I attended an interactive
presentation that demonstrated CSEC’s foreign signals intelligence
capabilities and response to an incident. The event was very effective in
demonstrating how the many different parts of CSEC, many personnel
and many different government departments and agencies cooperate, in
response to a top Government of Canada priority. I was struck by the
knowledge and professionalism of CSEC employees and their evident
dedication to their respective responsibilities. In addition, my employees
attended CSEC training on foreign signals intelligence activities and on
communications security.
Following a conference on security and privacy at the Université de
Montréal in October 2011, my office’s Executive Director wrote a
chapter in a book, Circulation internationale de l’information et sécurité,
published in late 2012. The chapter was based on his participation in
one of the conference panels, describing distinctions between national
security and public safety, the role and impact of review, and the
integration of technology and privacy protection in national security.
At the beginning of March, the Executive Director delivered a luncheon
address at the 15th annual conference organized by the Centre for Military
and Strategic Studies at the University of Calgary, with the theme Global
Security: Past, Present and Future. His address dealt with the role of
intelligence review, focussing on four questions: why is review
important; how effective can it be and what makes for effective review;
what is the view of the intelligence agencies themselves concerning
review; and what of the future and some challenges.
www.ocsec-bccst.gc.ca 37
WORK PLAN — REVIEWS UNDER WAY AND
PLANNED
Commissioners use a risk-based and preventative approach to reviews.
A three-year work plan is updated twice a year. Developing the work
plan draws on many sources. Two important ones are regular briefings
from CSEC on new activities and changes to existing activities, and
the Chief of CSEC’s classified annual reports to the Minister of
National Defence on CSEC’s priorities and legal, policy and management
issues of significance.
The results of several reviews currently under way are expected to be
reported to the Minister of National Defence in the coming year and
included in my successor’s 2013–2014 annual report. The subjects of
these reviews include: CSEC counter-terrorism activities; a follow-up to
this year’s review of certain foreign signals intelligence activities;
CSEC’s policy compliance validation framework and activities; and a
review of particular signals intelligence collection activities conducted
under ministerial authorizations.
In addition, before the end of my term as Commissioner, I will report to
the Minister on my ongoing review of CSEC’s foreign signals intelligence
sharing with its closest international partners — the United States’
National Security Agency, the United Kingdom’s Government
Communications Headquarters, the Australian Defence Signals
Directorate and the New Zealand Government Communications Security
Bureau. CSEC and its international partners respect each other’s laws by
pledging not to direct collection activities at one another’s citizens’
communications. CSEC is prohibited from requesting an international
partner to undertake activities that CSEC itself is legally prohibited from
conducting. However, CSEC sharing information with its international
partners could affect a Canadian; it is in the international sharing of
personal information where the risks are higher than for sharing involving
domestic partners. My 2011–2012 annual report contained an update on
38 ANNUAL REPORT 2012–2013
this review. This year, I continued my in-depth review and consulted my
independent counsel on general questions of law relating to this subject.
Some of the reviews planned for 2013–2014, which may carry over to
the next year, are: a review of CSEC IT security activities conducted
under ministerial authorizations in support of Government of Canada
efforts to address cyber threats; a follow-up review of CSEC activities
carried out under a ministerial directive for the purposes of identifying
new foreign entities believed to be of foreign intelligence interest; and a
follow-up review of CSEC efforts to address numerous gaps related to
CSEC’s dealings with the Canadian Armed Forces, as identified by
CSEC internal evaluators. In addition, the office plans to continue the
annual reviews of: (1) foreign signals intelligence ministerial
authorizations; (2) CSEC disclosures of Canadian identity information;
and (3) privacy incidents and procedural errors identified by CSEC and
the measures subsequently taken by CSEC to address them. The office
will work with my successor to put in place a comprehensive work plan
soon after his or her appointment.
IN CLOSING
The position of Commissioner is a legislated part of how the government
decided, in enacting the National Defence Act, to strike a balance
between — on the one hand — the Government of Canada’s need for
foreign signals intelligence and IT security services, and — on the other
hand — the need to protect the privacy of Canadians.
The role of the Commissioner and the Commissioner’s office is to be
sceptical and critical of CSEC activities and it is natural that our
respective organizations may sometimes disagree. However, we have a
shared objective with CSEC, which is to ensure CSEC complies with the
law and protects the privacy of Canadians in the conduct of its activities.
www.ocsec-bccst.gc.ca 39
The fulfillment of the Commissioner’s mandate rests on the integrity of
the office, its ability to effect change at CSEC and inspire confidence in
the public that CSEC is under rigorous review.
Finally, I thank the staff of my office, whose dedication, enthusiasm,
teamwork, rigour and sense of duty have been nothing short of
remarkable these past three years. I can say with pride and confidence
that CSEC is truly being watched.
40 ANNUAL REPORT 2012–2013
ANNEX A: COMMISSIONER’S OFFICE REVIEW PROGRAM —
LOGIC MODEL
www.ocsec-bccst.gc.ca 41
Plan, conduct and report on reviews
and studies of CSEC’s activities
Reports to Minister of
National Defence
and CSEC
- assurance
- information
- findings
- recommendations
CSEC accepts and
implements advice and
recommendations
Government and public confidence in the
lawfulness of CSEC’s activities
Notifications to Minister
of National Defence and
Attorney General of any
CSEC activity that may
not be in compliance with
the law
Annual reports to
Minister of National
Defence for tabling
in Parliament:
- assurance
- information
Support for
Minister of National
Defence in his/her
accountability for
CSEC
CSEC activities based
on sound policies,
procedures and
practices
Low CSEC susceptibility to, and
incidence of, lack of compliance
with the law; high level of
safeguarding privacy
OUTCOMES OUTPUTS ACTIVITIES
(Final) (Intermediate) (Immediate)

ANNEX B: EXCERPTS FROM THE NATIONAL DEFENCE ACT
AND THE SECURITY OF INFORMATION ACT RELATED TO THE
COMMISSIONER’S MANDATE
National Defence Act — Part V.1
Appointment of Commissioner
273.63 (1) The Governor in Council may appoint a supernumerary judge or a retired
judge of a superior court as Commissioner of the Communications Security
Establishment to hold office, during good behaviour, for a term of not more
than five years.
Duties
(2) The duties of the Commissioner are
(a) to review the activities of the Establishment to ensure that they are in
compliance with the law;
(b) in response to a complaint, to undertake any investigation that the
Commissioner considers necessary; and
(c) to inform the Minister and the Attorney General of Canada of any
activity of the Establishment that the Commissioner believes may not be
in compliance with the law.
Annual report
(3) The Commissioner shall, within 90 days after the end of each fiscal year,
submit an annual report to the Minister on the Commissioner’s activities and
findings, and the Minister shall cause a copy of the report to be laid before
each House of Parliament on any of the first 15 days on which that House is
sitting after the Minister receives the report.
ANNUAL REPORT 2012–2013 • www.ocsec-bccst.gc.ca 43
Powers of investigation
(4) In carrying out his or her duties, the Commissioner has all the powers of a
commissioner under Part II of the Inquiries Act.
Employment of legal counsel, advisors, etc.
(5) The Commissioner may engage the services of such legal counsel, technical
advisers and assistants as the Commissioner considers necessary for the
proper performance of his or her duties and, with the approval of the
Treasury Board, may fix and pay their remuneration and expenses.
Directions
(6) The Commissioner shall carry out such duties and functions as are assigned
to the Commissioner by this Part or any other Act of Parliament, and may
carry out or engage in such other related assignments or activities as may be
authorized by the Governor in Council.
[...]
Review of authorizations
273.65 (8) The Commissioner of the Communications Security Establishment shall review
activities carried out under an authorization issued under this section to ensure
that they are authorized and report annually to the Minister on the review.
44 ANNUAL REPORT 2012–2013
Security of Information Act
Public interest defence
15. (1) No person is guilty of an offence under section 13 or 14 if the person establishes
that he or she acted in the public interest. [...]
Prior disclosure to authorities necessary
(5) A judge or court may decide whether the public interest in the disclosure
outweighs the public interest in non-disclosure only if the person has complied
with the following: [...]
(b) the person has, if he or she has not received a response from the deputy head
or the Deputy Attorney General of Canada, as the case may be, within a
reasonable time, brought his or her concern to, and provided all relevant
information in the person’s possession to, [...]
(ii) the Communications Security Establishment Commissioner, if the
person’s concern relates to an alleged offence that has been, is being or
is about to be committed by a member of the Communications Security
Establishment, in the purported performance of that person’s duties and
functions of service for, or on behalf of, the Communications Security
Establishment, and he or she has not received a response from the
Communications Security Establishment Commissioner within a
reasonable time.
www.ocsec-bccst.gc.ca 45
46 ANNUAL REPORT 2012–2013 • www.ocsec-bccst.gc.ca
ANNEX C: 2012–2013 STATEMENT OF EXPENDITURES
Standard Object Summary ($)
Salaries and Benefits 907,567
Transportation and Telecommunications 15,412
Information 59,131
Professional and Special Services 305,572
Rentals 217,803
Repairs and Maintenance 1,515
Material and Supplies 10,383
Machinery and Equipment 16,985
Capital Assets, including Leasehold Improvements 751,350
Total 2,285,718

Canada’s super-secret electronic spy agency may have illegally targeted Canadians over the past year, a government watchdog has concluded.: Report slams Ottawa

Canada’s super-secret electronic spy agency may have illegally targeted Canadians over the past year, a government watchdog has concluded.

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.”

R.C. v. District School Board of Niagara

ate: 2013-08-13
Docket: 2010-04640-I; 2012-12245-I
URL: http://canlii.ca/t/g034z
Citation: R.C. v. District School Board of Niagara, 2013 HRTO 1382 (CanLII), <http://canlii.ca/t/g034z> retrieved on 2013-08-20
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HUMAN RIGHTS TRIBUNAL OF ONTARIO



______________________________________________________________________

B E T W E E N:

R.C. and S.C. by her next friend R.C.

Applicants

-and-



District School Board of Niagara

Respondent

-and-



Ontario Human Rights Commission and Canadian Civil Liberties Association

Intervenors



______________________________________________________________________



DECISION

______________________________________________________________________



Adjudicator: David A. Wright



Date: August 13, 2013



File Numbers: 2010-04640-I; 2012-12245-I



Citation: 2013 HRTO 1382



Indexed as: R.C. v. District School Board of Niagara

______________________________________________________________________





APPEARANCES







)






R.C. and S.C. by her next friend R.C., Applicants

) )



Self-represented




)

















)






District School Board of Niagara, Respondent

) ) )



Derek Bell and Ranjan Agarwal, Counsel and Jessica Mathewson, Student-at-Law




)

















)






Ontario Human Rights Commission, Intervenor

) )



Cathy Pike and Sunil Gurmukh, Counsel




)

















)






Canadian Civil Liberties Association, Intervenor

) )



Stuart Svonkin and Sarah Whitmore, Counsel




)




































INTRODUCTION

[1] This Application relates to events that occurred when S.C. was in grade five at a school in the respondent District School Board of Niagara (the “Board”). Under Board policy at the time, the Gideons International In Canada (the “Gideons”) were permitted to distribute their version of the New Testament to grade five students in a Board school, if the principal in consultation with the school council agreed. The Gideons were the only religious group permitted to do so. Parental consent forms were distributed to the class, and the distribution to students whose parents had agreed took place outside class time. When S. was in grade five, she brought home a consent form, although the distribution to her class never in fact happened. The School Council subsequently decided not to approve the distribution.

[2] The C. family identifies as atheist. S.C. and her father, R.C., each of whom has made an Application, allege that the Board policy discriminated against them with respect to services because of creed, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). After the events in question, the Board changed its policy to allow other religious organizations to also distribute religious texts in the schools in certain circumstances, although no materials other than the Gideon Bible have been distributed. The applicants assert that the policy change has not addressed the discrimination and that the new policy is also discriminatory. They seek no financial compensation, but ask that the Tribunal order that the policy be rescinded and that no religious literature of any kind be distributed in the schools.

[3] These facts and the parties’ thoughtful arguments on all sides raise various significant issues, including whether atheism falls within the meaning of “creed” in the Code and whether optional creed-related activities may take place in a public school outside school hours. For the reasons that follow, I find that discrimination because a person is atheist falls within the definition of creed, that the Board discriminated against the applicants through its policy permitting only the Gideons to distribute religious literature in schools, and that the new policy does not comply with the Code. The Code does not require, however, that the public schools be free of optional religious activities outside classroom hours, so long as all creeds are treated with substantive equality. I leave to the elected Board trustees in Niagara to decide whether to continue to permit distribution of literature from creeds in their schools and if so, to design a new policy that complies with the Code. I remain seized to deal with any disputes that may arise over the next year about whether any new policy complies with the Code.

FACTUAL BACKGROUND

[4] The procedural history of this matter, including the granting of intervenor status to the Ontario Human Rights Commission (“Commission”) and the Canadian Civil Liberties Association (“CCLA”), is set out in two previous Interim Decisions: 2012 HRTO 583 (CanLII), 2012 HRTO 583 and 2012 HRTO 1591 (CanLII), 2012 HRTO 1591. The hearing was held on February 5 and 6, 2013.

[5] At the hearing, R.C. testified on behalf of the applicants and Warren Hoshizaki, Director of Education, testified on behalf of the respondent. The parties do not disagree about the relevant facts.

R.C. and S.C.

[6] The C. family has three children; S. is the youngest. She is now in grade eight. R. describes himself as an atheist or non-theist. He rejects the idea that there is a deity of any kind and believes that the suggestion there is one is false. When asked whether his daughter is an atheist, R. noted that there is some debate about whether children are capable of having religious views, and testified that he is hesitant to label a child by her parents’ beliefs. However, R. says that anyone discussing the issue with her would conclude that S. is a non-believer.

Board Policies

[7] When the Board was formed in 1998, it adopted the approach to religious publications of one of its predecessor boards, the Lincoln County Board of Education, which allowed only the Gideons to distribute religious materials in the schools. Board Policy G-22, Religious Publications, dated October 1998, read as follows:

It is the policy of the District School Board of Niagara to accept the offer of the Gideon’s [sic] International in Canada to present New Testaments to all Grade 5 pupils who wish to have them, in schools where the Principal, in consultation with the School Council, agrees.

[8] Administrative Procedure 1-12, The Distribution of Religious Publications/ Presentations as Authorized by Board Policy, dated November 1998, reads as follows:

1. No student should receive a religious publication without a signed parent permission slip.

2. Any religious presentation should be held outside of instructional time and preferably after school hours (this may not be practicable in bused schools).

3. Attendance by students at the religious presentations must be optional. It is advisable for elementary school Principals to seek parental permission in these circumstances. Secondary Principals are to use their discretion.

4. A staff member, preferably the Principal or Vice-Principal, should be in attendance when the religious publications are being presented.

5. NO religious instruction or indoctrination is to be allowed during the presentation.

The “New Testament Answer Book”

[9] The Gideon Bibles are small pocket-size books, covered with portraits of diverse young people, with the title “The New Testament Answer Book” on the front and “the little red answer book” on the back. Before the Biblical text, which includes the New Testament, Psalms and Proverbs, there are various preliminary sections. These include indexes of specific passages of the Bible including those that assist with “life’s big questions”, “where to find help” for specific types of situations, “Christian Virtues”, and various Bible stories. The Ten Commandments are included, as is the text of John 3:16 in multiple languages.

[10] The first two pages are called “Directions for Your Journey”. This section begins and ends as follows:

No matter where you are on your personal journey, we’re glad you’re holding this book. It will help you navigate the twists and turns of your life and point you to the only One who can truly help you find your way Home.

…

Hang onto this book and draw from it regularly. The key message you’ll discover is that God loves you. No matter what you’ve done or who you’ve become today, He loves you and forgives you. All He’s asking is that you surrender your old life to Him and begin a brand new one.

Are you ready to start a new journey in your life?

[11] The section called “Reading Daily” states that the “Book is given to you with only one request – that you read it every day”. It tells the reader:

Read prayerfully. Pray before you read and afterwards. Ask God to open your mind to understand His Word. Ask Him to reveal to you Jesus Christ as Saviour and Lord.

The November 2009 Distribution and the First Request to Distribute “Just Pretend”

[12] In 2004, when his oldest child was in grade 5, R.C. decided to attend the Gideons’ presentation to see how it unfolded. In the library after class, the Gideons’ representative made a short verbal presentation that included encouraging the children to read the Bible each day. There was a new principal when the family’s middle child was in grade five, and the issue did not arise because that principal did not allow the distribution.

[13] In November of 2009, after another new principal took over, the following note was sent home with grade five students, including S.C.:

Dear Parents/Guardian of Grade 5 Pupil:

Each year around this time, the Gideons International offer a copy of the New Testament (part of the Bible) to all students in Grade 5. This presentation will be made in this school in the near future. It will be done in compliance with the policies of the District School Board of Niagara. The book is free of charge, participation is voluntary, and the presentation is made without religious instruction.

Board policy requires that in order for a child to receive the book, signed permission must be provided by the parent or guardian. If you permit your child to receive it, please sign the attached permission form and return it to the school before Tuesday November, 24, 2009. [sic]

[14] The applicant contacted the principal and proposed that he be permitted to distribute a book called “Just Pretend: A Freethought Book for Children”, which promotes atheism. It is published by the “Freedom From Religion Foundation”. The book compares God to Santa Claus as something that is “just pretend”. It portrays God as a myth that some people believe in but that is demonstrably not true. It suggests that “the Bible, the Koran and the Vedas are filled with mistakes and wild stories”. It concludes as follows:

No one can tell you what to think.
Not your teachers.
Not your parents.
Not your minister, priest or rabbi.
Not your friends or relatives.
Not this book.

You are the boss of your own mind.
If you have used your mind to find out what is true, then you should be proud.
Your thoughts are free.

If you are an atheist, then you know that God Is Just Pretend.

[15] Although the book reflects his beliefs, R.C.’s purpose in making this request was not to promote atheism among the school’s grade five children. He believed that other parents might be upset about being asked to consent to their children receiving such materials in the same way he felt offended in being asked to consent to his children receiving the Gideons’ materials, and it would encourage a change in policy to eliminate the distribution of religious texts. As he stated in a subsequent letter to the school council:

We believe that if non-theistic materials were distributed in an Ontario Public School that fact would set off an enormous controversy. People would insist that the Public School system is not the place for people with a religious agenda; and that is exactly our point! Gideon’s [sic] are a group with a religious agenda, and the DSBN, and this Principal, are actively acting to allow them access to the schools to forward that agenda.

[16] At the meeting of the School Council (made up of parents) on November 30, 2009, it decided that neither the Gideon Bible nor Just Pretend should be distributed in the school. On December 3, 2009, the principal wrote to the parents who had consented advising them that the distribution would not be taking place.

Changes to the Policy

[17] R.C. continued advocating for changes to the Board’s practices, and a lawyer sent a letter on his behalf in December 2009 alleging that Policy G-22 violated the Code and asking that it be rescinded. This Application was filed in January 2010 and delivered to the respondent in March 2010.

[18] The Board’s Policy Advisory Committee considered the issue and decided between three options: (i) rescinding Policy G-22; (ii) expanding it to make it more inclusive; or (iii) revising it to reflect that there be no distribution of religious publications during instructional time or before or after school hours. A change intended to implement the second option was approved by the Policy Advisory Committee and the Board in February 2010. Although it was reviewed, there were no changes to Administrative Procedure 1-12.

[19] Policy G-22 now reads as follows:

Any requests for the distribution of religious publications in schools must be approved by the Director or designate and subsequently by the Principal, in consultation with the School Council and with pre-approved parental consent.



Application of the Policy

[20] R.C. made a second request to distribute “Just Pretend” in early 2010 after Policy G-22 was amended. In a letter signed by Mr. Hoshizaki, the Board refused the request for two reasons. First, the Board took the position that pursuant to Canadian Civil Liberties Assn. v. Ontario reflex, (1990), 71 O.R. (2d) 341 (“CCLA”) school boards are “entitled to sponsor the study of all religions without imposing the view of any particular religion”. It stated that atheism is not a religion pursuant to the criteria set out in Syndicat Northwest v. Amselem,2004 SCC 47 (CanLII), [2004] 2 S.C.R. 551. Second, the letter stated that “Just Pretend” is a “secondary publication as opposed to a globally recognized sacred text or authoritative source of any religion (or even any belief)” and not listed in the Multifaith Information Manual (“MIM”) created by the Ontario Multifaith Council. The letter stated that decisions about which materials to approve are based on this manual, which “lists the recognized sacred texts of which there is global association and recognition”.

[21] After receiving this letter, R.C. contacted representatives of various organizations listed in the MIM and encouraged them to submit a request to the Board to distribute religious materials. The only request made in response was submitted on May 31, 2010 to the Board’s general inquiries e-mail by the Secretary of the Canadian Council of Imams (“Council of Imams”) and reads in relevant part as follows:

We at the Canadian Council of Imams extend gratitude for opening your schools to receive and distribute MultiFaith literature.
How can we send some books and brochures on the Islamic Faith?

[22] The response was sent by e-mail on July 27, 2010 by the Board’s Consultant: Cultural and Linguistic Diversity and reads as follows:

Thank you for your request surrounding distribution of religious materials. Here is a link to the DSBN Policy: [internet link omitted]

Also, I am pleased to let you know that our school libraries and classrooms have a very wide and inclusive collection of books, including books about Ramadan and other aspects of Islamic culture, as well as other faith groups. We also recognize and value multifaith celebrations in schools.

If you would like further information, please feel free to contact me.

[23] In late 2010, the applicant asked what groups had been approved to distribute religious material in public schools. The Board’s in-house lawyer replied in December 2010, advising that the Board had received one request to distribute Gideon Bibles, which was approved because the text was listed in the MIM. The letter stated that this was the only request the Board had received other than his.

[24] The MIM is produced by the Ontario Multifaith Council on Spiritual and Religious Care, which works in support of chaplains and spiritual caregivers. It appears to be meant primarily as a resource for individuals providing spiritual care to individuals of multiple faiths. It has chapters on Bahá’í, Buddhism, Christianity and 23 Christian denominations, Hare Krishna, Hinduism, Islam, Jainism, Judaism, Native Spiritual Traditions, Rastafari, Sikhism, Wiccan Church of Canada, and Zoroastrianism. For each, the MIM provides information about religious practices, including the titles of any scriptures and sacred writings required. The chapters are typically prepared by adherents of that faith.

[25] In the December 2010 correspondence with R.C., the Board suggested that the MIM allows it to objectively determine whether a text falls within its policy “by reference to an accepted list of religious texts”. Mr. Hoshizaki’s testimony made clear, however, that this is not the case. First, the MIM does not include every creed. Falun Gong (Huang v. 1233065 Ontario, 2011 HRTO 825 (CanLII), 2011 HRTO 825) has been found to be a creed under the Code, but is not referred to in the MIM. Mr. Hoshizaki stated that if someone sought to distribute Falun Gong literature, he or his staff would have to do further research. Second, the MIM does not always clearly set out what are sacred as opposed to secondary texts. For example, the first chapter, on Bahá’í, lists as scriptures “Works by the Báb (forerunner), Baháu’liáh, and His son Abdu’l-Baháí. The works of Shoghi Effendi (grandson of Abdu’l-Bahá’) are considered authoritative, but not sacred”. When asked in cross-examination by Commission counsel what he would do if someone wanted to distribute a work of Shoghi Effendi, Mr. Hoshizaki stated that Board staff would have to do research to assist in making a decision.

[26] The absence of clear guidance in the MIM about a proposed text is not limited to Bahá’í. The section on the Catholic Church states as follows under the heading, “Scriptures and Religious Books”:

• The authorized translations of the bible used by Roman Catholics include the New Jerusalem, New American and New Revised Standard Version (Catholic edition).

• Other religious books include lectionaries and sacramentaries used in the celebration of Mass (also called the Eucharist), Sunday and daily missals for general use, the Roman Ritual (now ordinarily divided into separate liturgical books for the celebration of each sacrament) and hymnals (e.g. Catholic Book of Worship, Glory and Praise).

Books and booklets of traditional and modern prayers for private use are available in a variety of forms.

It is not clear whether a book of modern Catholic prayers, for example, would be considered a globally recognized sacred text or authoritative source, or instead secondary materials.

ANALYSIS

Does Atheism Fall Under the Ground of “Creed” In the Code?

[27] Section 1 of the Code reads as follows:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

“Creed” is translated in the French version of s. 1 as “la croyance”.

[28] The respondent submits that atheism is a not a creed, and that the Application should be dismissed on the basis that the Code does not protect against discrimination because a person is atheist. The applicant and the CCLA take the position that atheism is a creed. The Commission takes the position that the issue need not be decided, because even if atheism is not a creed, discrimination against a person who does not have a creed is included in the protection against discrimination because of creed. The Commission notes that it is revising its policy on creed and does not ask that the Tribunal adopt the definition of creed in its 1996 Policy on creed and the accommodation of religious observances.

[29] As I wrote in Landau v. Ontario (Finance), 2011 HRTO 1521 (CanLII), 2011 HRTO 1521 at para. 12:

While it may be helpful to refer to particular rules of statutory interpretation, the fundamental principle in interpreting any statute, including the Code, is to take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (Re),1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21; Ontario Human Rights Commission v. Christian Horizons,2010 ONSC 2105 (CanLII), 2010 ONSC 2105 at para. 42. In applying this principle in the context of the Code, rights are to be interpreted broadly and exceptions narrowly.

[30] In my view, a purposive interpretation of the prohibition on discrimination because of “creed” in the Code includes a prohibition on discrimination because a person is atheist. To accept the respondent’s submissions would be to find that the Code only protects core beliefs about oneself, humankind and nature linked to one’s self-definition when they accept the existence of a deity or have particular practices. The purpose of prohibiting discrimination because of creed includes ensuring that individuals do not experience discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.

[31] It is well-established that creed in the Code encompasses, at least, discrimination because of religion: Loomba v. Home Depot Canada, 2010 HRTO 1434 (CanLII), 2010 HRTO 1434 at para. 96; Ataellahi v. Lambton County (EMS), 2011 HRTO 1758 (CanLII), 2011 HRTO 1758 at paras. 6-8. Protection against discrimination because of religion, in my view, must include protection of the applicants’ belief that there is no deity, a profoundly personal belief about the lack of existence of a divine or higher order of being that governs their perception of themselves, humankind and the world. The applicants’ beliefs relate to religion, and engage the purpose of ensuring that people are treated equally regardless of their views and practices on religious matters. It is not necessary in this case to decide whether creed may in some cases encompass core beliefs about fundamental matters other than religion.

[32] In defining what is included within the ground of creed, the Tribunal has often relied on freedom of religion jurisprudence under s. 2(a) of the Canadian Charter of Rights and Freedoms and to Charter values. Indeed, the Tribunal is required to consider Charter values when interpreting statutes, particularly those that are ambiguous. See Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), 2012 SCC 12 at para. 35; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42 (CanLII), 2013 SCC 42; Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 (CanLII), 2013 HRTO 180 at paras. 32-36. Because freedom of religion under s. 2(a) of the Charter encompasses both the freedom to practice religion and a requirement of non-discrimination as between religions, this jurisprudence can be particularly useful in dealing with creed claims: Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639 (CanLII), 2011 HRTO 639 and Huang, above at para. 29.

[33] In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, the seminal case on freedom of religion, the Supreme Court held that protection of freedom of religion and conscience under the Charter includes both belief and non-belief. At paras. 94 and 123, Dickson C.J. wrote:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that…

The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injury his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations and are therefore protected by the Charter. Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice.

[emphasis added]

[34] In R. v. Edwards Books and Art, 1986 CanLII 12 (SCC), [1986] 2 SCR 713, the Court stated as follows at para. 97:

The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs in turn govern one’s conduct and practices.

[emphasis added]

[35] In S.L. v. Commission scolaire des Chênes, 2012 SCC 7 (CanLII), 2012 SCC 7, the Court held that the protection against discrimination because of religion within s. 2(a) includes protection of the absence of religious beliefs. The Court held as follows, at para. 32:

Therefore, following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected.

[emphasis added]

[36] The respondent relies on the following passage from Amselem, above, which it says precludes the finding that atheism falls under the protection against discrimination because of creed:

In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow the individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

[37] This passage does not suggest that the Court now requires, contrary to its clear statement in Big M, that a belief system accept the existence of a deity and/or have an organized set of practices to fall within the protection of freedom of religion or against discrimination because of creed. The belief that there is no deity, superhuman or controlling power is equally connected to “spiritual faith, self-definition and spiritual fulfilment” as a belief that one exists. The Court in Amselem notes that religion tends to involve a belief in such a power, and typically involves a particular and comprehensive system and faith and worship, but it does not state that these are requirements for a set of beliefs about the nature of the world and the divine to fall within freedom of religion. Amselem also relies upon the above quotation from Edwards Books, and in no way repudiates the statement in Big M that non-belief falls within freedom of religion. Finally, the more recent decision in S.L.makes clear that non-belief is protected under freedom of religion.

[38] The interpretation proposed by the respondent would lead to results that are clearly inconsistent with the purpose of protecting against creed-based discrimination. It would allow discrimination against persons because they do not accept a particular religion, so long as they are not adherents of another set of beliefs and practices. The Tribunal recently recognized, in Freitag v. Penetanguishene (Town),2013 HRTO 893 (CanLII), 2013 HRTO 893 at paras. 19-23, that the protection against creed-based discrimination can be engaged by the fact that a person does not share the religious beliefs of others, and the respondent’s position is inconsistent with that analysis.

[39] The difficulty with the respondent’s position is illustrated by the following example of its consequences. If an employer decided to dismiss all employees who did not share the religious faith of the president of the company, those who belonged to other religions would have a claim, but not those who are atheist, agnostic or who do not have a view on religion. It would allow the province, a service provider or an employer to enforce particular views and practices on those with atheist views or no clear views about such matters, but not on those who actively believe in a different religion. This is not a purposive interpretation of the Code.

[40] I also rely on the fact that international human rights law includes protections for atheism as part of freedom of religion. As the Supreme Court held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para. 70, “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. Article 18(1) of the International Covenant on Civil and Political Rights, which has been ratified by Canada, reads as follows:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

[41] Although the wording includes “religion or belief”, Article 18 in my view has the same purposes as the protection of creed in the Code. Article 2 of the 1993 General Comment on this article by The Office of the High Commissioner for Human Rights, General Comment No. 22, UN Doc. CCPC/C/21/Rev.1/Add/4L makes clear that atheistic beliefs and non-belief are protected in this fundamental international human rights treaty:

Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.

[42] Finally, I rely upon the French translation of “creed” in the Code, croyance. This reflects a broader understanding of creed that reflects beliefs rather than only identification with a formal set of religious views.

[43] For all these reasons, I conclude that a liberal and purposive interpretation of the prohibition on discrimination because of “creed” includes atheism and that discrimination because a person is atheist is prohibited by the Code.

Did the Respondent Discriminate Against the Applicants when its Policy Permitted Only the Gideons to Distribute Religious Literature in Schools?

[44] Allowing only the Gideons, a Christian group, to distribute religious literature in the Board’s schools under the version of the policy in place when S.C. was in grade five discriminated against the applicants. S.C. was a student and R.C. was a parent in a school board where, pursuant to policy, representatives of one creed and no others, including atheists, were permitted to distribute religious texts to students in the schools. They were asked to consent to S.C. receiving the text of one creed with which she did not identify and there was no opportunity for her to receive literature from any other creed that wished to provide it.

[45] There was considerable argument about the appropriate legal analysis to determine whether there is substantive discrimination following the Supreme Court’s decision in Quebec (Attorney General) v. A., 2013 SCC 5 (CanLII), 2013 SCC 5. There is no need for an extensive discussion of the test in this Decision. I assume, for the purposes of this case, that the Charter jurisprudence on the approach to discrimination applies in these circumstances, as argued by the respondent. The majority of the Supreme Court’s analysis in A. of the approach to discrimination is set out in the reasons of Abella J., since Deschamps J., speaking on behalf of three judges, expressed her agreement with that analysis (see para. 385) as did McLachlin C.J. (see para. 418), although the Chief Justice added some additional comments.

[46] The analysis involves one key question: whether there has been a violation of the norm of substantive equality (para. 325). This involves looking at whether the conduct is discriminatory, focusing on the impact on those affected and does not include a consideration of the motives for, reasonableness of, or attitude behind the distinction (paras. 328-330, 335). There is no particular formula; it is a flexible and contextual inquiry that, depending on the case, may involve consideration of factors such as historical disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected (paras. 418, 531).

[47] In this case, there is no question that the first version of the policy, permitting students to receive literature in the public schools from one creed, but not others, violated the norm of substantive equality. It promoted prejudice and stereotyping by suggesting that non-Christians, including atheists, are less worthy and valuable than others of having their creed included in the public school system. It perpetuated historical disadvantage of non-Christians, including atheists, in public institutions.

Historical Disadvantage

[48] The historical disadvantage of non-Christians is shown in reported decisions. For example, prior to litigation under the Charter, Canadian law prohibited sale of goods on Sunday for Christian religious purposes (Big M, above). Disadvantage of non-Christians was also present in the Ontario public school system, which included Christian prayer as part of opening or closing of the school day (Zylberberg v. Sudbury Board of Education (Director) 1988 CanLII 189 (ON CA), (1988), 65 OR (2d) 641) and Christian religious indoctrination in its curriculum (Canadian Civil Liberties Assn. v. Ontario reflex, (1990), 71 OR (2d) 341 (“CCLA”)).

Interest Affected

[49] The interest affected, the education of children, is particularly important and the impact on others is significant when one creed only is given priority and public recognition in a school setting. As set out in Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 SCR 825 at para. 42:

A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate.

[50] I also take into account that the selective granting of permission to one creed to distribute religious materials was to grade five students. Children may be particularly vulnerable at such an age to the message sent when their school formalizes the delivery of religious views by one faith that does not include the creed with which they or their family identify. In Baker, above, the Supreme Court emphasized the importance of giving particular consideration to children’s interests, needs and rights (para. 73).

[51] Important interests of both R.C. and S.C. were affected. S.C. experienced discrimination with respect to educational services provided to her. R.C. also experienced discrimination with regard to a significant interest. As recognized by the Supreme Court of Canada, the interest in raising a child according to one’s own religious beliefs is constitutionally protected. See B.(R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 SCR 315. When a public school is not neutral with respect to creed, it discriminates with respect to services against both parents and children whose creed is marginalized.

Other Contextual Factors

[52] There is no basis on which to suggest that giving priority to Christians in distribution of religious materials in schools corresponds with their needs or promotes equality.

[53] For these reasons, I conclude that both R.C. and S.C. experienced discrimination with respect to services under the pre-2010 policy. The respondents have articulated no valid education-related purpose for restricting the distribution of religious literature to representatives of one creed, and the policy as it stood when S.C. was in grade five cannot be justified pursuant to s. 11 of the Code.

REMEDY

[54] Section 45.2 (1) of the Code reads as follows:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

[55] The applicants seek no monetary compensation for the discrimination they experienced in 2009. They seek an order that the new policy be rescinded and no religious literature be permitted. I agree with the respondent that in the circumstances, there is no need to make an order about the old policy that has now been repealed. In order to decide whether to grant a remedy that the new policy be changed, I must consider whether it complies with the Code and is sufficient to promote compliance with the Code in the future in light of the 2009 discrimination. Put differently, if the Board’s own changes have remedied the discrimination, there is no need for the Tribunal to provide a remedy. If they have not, the Tribunal should order changes, under the third paragraph of s. 45.2 (1).

Does the Code prohibit Distribution of Religious Materials in Public Schools outside the School Day?

[56] The first issue is whether the Tribunal’s remedial order must prohibit the distribution of any religious materials in the public school system outside classroom time, even if the policy is neutral and ensures that there is no coercion or perception by a reasonable person that the Board favours one creed.

[57] The respondent emphasizes that a school does not provide only formal learning during the classroom day. There are numerous optional extra-curricular activities within a school building before and after school and during breaks in which students can participate, and the respondent argues they should be evaluated differently than what happens within the classroom. In the respondent’s view, the distribution of religious literature under the new policy facilitates parents’ and students’ access to materials they may wish to receive, and is a valid and important part of the school’s role in the community.

[58] The CCLA and the applicant suggest that as soon as schools go beyond neutral religious education and facilitate any religious message from a creed, there is discrimination. They suggest that religion should be in the schools only through the academic study of religions. They argue that the act of sending home and returning a permission slip identifies those students who do not attend a distribution and singles out those who do not share the creed whose materials are distributed. The distribution of the forms and the presence of the principal or vice-principal at the distribution, they say, subtly identifies the school with the religious message being sent by those distributing the text. The CCLA argues that because religious indoctrination by the school is prohibited under s. 2(a) of the Charter (see CCLA, above at para. 7) optional religious activities in the school are also prohibited. It equates the distribution and return of permission forms to the requirement to opt out of Christian religious exercises discussed in Zylberberg, above.

[59] In my view, optional religious activities outside the instructional day are permitted under the Code if all creeds are treated equally, there is no subtle or formal coercion to participate, and the school makes clear that it is not favouring any of them. Equal treatment without discrimination because of creed does not require that all activities relating to creed other than education about diverse religions be banished from the public schools. I agree with the respondent that, under a carefully developed policy that ensures equality between all creeds, it can permit distribution of religious and creed literature outside the school day with parental consent.

[60] To find that there can be no promotion of religious ideas or practices in public schools for those who want to participate in them would be to prohibit activities like optional religious clubs in high schools or the provision of prayer rooms. In my view, the Code ensures equality because of creed, but does not ban creed from all public spaces. Indeed, such a policy could be contrary to Code values of diversity and inclusion. Creed-based activities outside the classroom need not be eliminated, so long as participation is optional, no pressure is applied on students to participate, the school is neutral and it makes clear that it is facilitating such optional activities for all creeds, not promoting any particular creed.

[61] I do not agree with the CCLA that the distribution of permission forms and the return of those forms to participate in optional activities outside the school day is equivalent to requiring students to self-identify to receive an exemption from mandatory religious opening exercises during the school day, found to violate freedom of religion in Zylberberg, above. The Supreme Court has recognized that children can understand that others have different views on matters of religion and faith without being unduly influenced. See S.L., above at para. 40;Chamberlain v. Surrey School District No. 36, 2002 SCC 86 (CanLII), 2002 SCC 86 at paras. 65-66. Allowing students to opt into an activity outside the classroom, given the large number of such activities in which students may or may not participate, is not discriminatory if it is made clear that all creeds may engage in such activities in an equal manner in the school and the school is not endorsing any of them. This is fundamentally different from including formal worship during the school day and requiring students to opt out if they do not want to participate.

Does the Revised Policy Ensure Neutrality and Non-Discrimination?

[62] I find that that the new policy does not conform with the above principles. Neither the text of the new policy nor the manner in which it has been applied complies with the Code.

The Text of the Policy

[63] The new Policy G-22 is merely a grant of discretion to approve distribution of religious materials. Any such distribution must be approved by the Director of Education, then by the principal in consultation with the school council. There are no written guidelines about what will be approved, and nothing to ensure that creeds are treated equally across the Board’s schools in relation to requests to distribute materials. While I accept based on his testimony that Mr. Hoshizaki takes seriously the need to treat requests based on consistent criteria, there is no guidance to principals or school councils as to how to carry out their functions. This poses the serious risk that requests to distribute materials from different creeds will be treated differently. The lack of consistency, even before the new policy, is demonstrated by the fact that different principals at S.C.’s school took different approaches to whether the Gideon Bible would be distributed.

[64] The lack of clarity in the policy has placed the Board in the position of deciding on a case-by-case basis which pieces of literature may be distributed, and the criteria for doing so have been inconsistent. Although the Board’s letter to Mr. C. when he asked to distribute “Just Pretend” suggested that only materials in the MIM could be distributed, Mr. Hoshizaki’s testimony made clear that in light of the fact that some creeds are not included in the MIM, he may need to have staff research the issue if a request is made. He also acknowledged that staff may have to do research to determine whether some of the diverse books listed in the MIM can be distributed. The Board cannot be in a position of making such choices in individual cases without being seen to judge the validity of particular religions and religious texts and lose its neutral stance.

[65] Second, I agree with the applicant that merely changing the policy to permit the distribution of materials of other creeds was not sufficient, in particular in light of the previous discriminatory practice. The most important equality rights at issue in this case are those of the students and their parents to equal treatment in education, not those of persons who wish to distribute materials in the schools. From the perspective of grade five children, the effect of having only the Gideon Bible distributed in their school under the new policy is similar that under the old policy. To ensure compliance with the Code under an amended policy, the Board had the responsibility to make at least some efforts to encourage a diversity of literature and awareness of the policy under which the materials could be distributed.

[66] Third, the policy failed to ensure that a clear statement was included in the communication with parents about any distribution confirming that all creeds are permitted to distribute materials to students with parental consent. This would have avoided any impression that the Board was favouring a particular creed by allowing the distribution.

The Application of the Policy post-2010

[67] I also find that the manner in which the discretion was exercised was discriminatory. The respondent in its letter to R.C. relied upon the MIM. As Mr. Hoshizaki acknowledged, the MIM does not include information about every creed, including some recognized in this Tribunal’s jurisprudence, and the information about each religion is prepared by that religion. It is intended to assist in pastoral care and multifaith understanding, not in judging texts according to a consistent standard. In particular, it left out any material about the applicant’s creed.

[68] There was also discrimination in the attempted restriction of the policy to “recognized sacred texts of which there is global association and recognition” and not secondary materials. The MIM itself makes clear that not every creed is text-based or has “sacred texts”; for example it states that Native Spiritual Beliefs “have no written scriptures but ceremonies and beliefs are learned by word of mouth and actual experience”. As the applicant testified, atheists have no such “sacred text” so providing materials that reflect the creed of atheism means distributing publications like “Just Pretend”. The policy was discriminatory because its definition of acceptable materials violated substantive equality by excluding the kinds of materials central to many creeds. The restriction to sacred or foundational texts excludes some creeds and is therefore discriminatory. The requirement that there be “global recognition” may also have the effect of excluding emerging or non-traditional creeds.

[69] Moreover, the standard was not consistently applied. The Gideon Bible includes what appears to be “secondary material” in addition to biblical text. A standard that was relied upon to reject “Just Pretend” was not applied to the Gideon Bible.

[70] The Board made no efforts to publicize the policy or to ensure that other creeds were aware that they could provide materials. Indeed, when it received the request by the Council of Imams to distribute materials on Islam, the Board’s response was inconsistent with a policy of substantive equality between creeds. The Council of Imams asked, during the school year, to send religious material to be distributed in the schools. The Board responded two months later, in the summer, with a link to the policy, which is itself vague, and no information as to how to actually provide the materials as requested. Whether intentional or not, a reasonable reading of the e-mail would lead a reader to believe that the Board was not interested in encouraging or even facilitating the distribution of materials other than the Gideon Bible and the Board did not take the opportunity to ensure that there was more than one creed’s materials distributed in the schools.

Justification

[71] The Board suggests that if the new policy is discriminatory, it is justified under s. 11 of the Code as a reasonable and bona fiderequirement in order to promote the objective of giving students and their families access to seminal texts from religions. The Board argues that it would undermine its objective if the Board had to distribute materials that were not seminal texts such as “Just Pretend”. The Board argues that the new policy therefore complies with the Code and remedies the 2009 discrimination, and that the Tribunal should therefore not order that it be changed.

[72] I need not engage in an extensive analysis of whether the respondent has met each aspect of the test for justification under British Columbia (Public Service Employee Relations Commission) v. BCGSEU¸ 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”). The third step of that test requires that the requirement be reasonably necessary to accomplish its purpose or goal, and that the respondent could not accommodate the differences without experiencing undue hardship. Assuming that the other steps in the test are met, there is no evidence or reason why the respondent’s objective of giving students access to texts of creeds would be undermined by permitting optional attendance, with parental permission, at a distribution of atheist literature or materials that discuss traditional native spirituality. The desire to restrict the policy to the manner in which some creeds convey their core beliefs (seminal or authoritative texts) cannot justify an exclusion of creeds that convey their core message in other ways.

[73] I understand that some parents and students may not agree with some of the content of atheist literature like “Just Pretend”. However, the applicant and others do not agree with some of the content of the Gideon Bible. If the Board decides to have a policy permitting distribution of religious literature, it must be prepared to accept that some parents and students might object to materials that others, with parental permission, are receiving. If it is prepared to distribute permission forms proposing the distribution of Christian texts to committed atheists, it must also be prepared to distribute permission forms proposing the distribution of atheist texts to religious Christians. It cannot design its criteria in a way that would permit communication of materials setting out their beliefs by some, but not all creeds.

The Role of the Board

[74] For these reasons, I find that the Board’s 2010 policy is also contrary to the Code, and will order a remedy to promote compliance with the Code. The decision about whether and how to redesign the policy should be that of the Board, the elected body that decides upon educational policy in Niagara. It is the Board’s choice whether to end the practice of distributing religious literature or to design a new policy that complies with this Decision and to decide upon the details of the policy.

[75] In view of the discrimination found in this Decision, policy G-22 will be declared invalid. The Tribunal’s Order will provide that no distribution of religious materials shall take place in the Board’s schools unless the Board designs a new policy consistent with the Codeprinciples set out in this Decision. In order to ensure that any new policy complies with the Code, the Order will provide the Board with six months to develop any new policy and provide it to the applicants and intervenors. I will remain seized for one year to deal with any disputes about whether any new policy complies with the Code. This will facilitate and promote the primary place of local democratically elected representatives while ensuring that a remedy at the Tribunal is available in an expeditious manner if any party believes there continues to be discrimination.

[76] I want to conclude by thanking all counsel and R.C., who was self-represented, for their helpful and thoughtful arguments and the collegial and highly respectful approach they all took to the argument of the case.

ORDER

[77] The Tribunal orders as follows:

1. Both Applications are allowed.

2. Board policy G-22 as it now reads cannot be relied upon by the Board.

3. Unless it develops a new policy consistent with the Code principles set out in this Decision, the Board shall not permit the distribution of religious publications in its schools.

4. If the Board intends to develop a new policy permitting distribution of creed and religious publications in its schools, it shall finalize the policy within six months, and provide a copy of the new policy to the applicants and intervenors.

5. If any party to this case believes that the new policy or practices under it are inconsistent with the Code, it may write to the Registrar no later than one year from the date of this Decision and request that I decide the issue.

6. I shall remain seized of these Applications for the purpose of dealing with disputes about any new Board policy raised with the Registrar within one year of today’s date.

Dated at Toronto, this 13th day of August, 2013.

“Signed by”

__________________________________

David A. Wright

Associate Chair