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A Canadian Maple Leaf flag flies near the Peace tower on Parliament Hill in Ottawa on Feb.15, 2012. (Adrian Wyld/THE CANADIAN PRESS)
A Canadian Maple Leaf flag flies near the Peace tower on Parliament Hill in Ottawa on Feb.15, 2012. (Adrian Wyld/THE CANADIAN PRESS)

How Canada’s shadowy metadata-gathering program went awry Add to ...

The Canadian agency’s one whistleblower to date has alleged that, during the 1970s, he spied on Margaret Trudeau’s car phone after the RCMP Security Service asked him to figure out if the prime minister’s wife was smoking dope.

“There was no watchdog. They just did whatever they felt like doing,” claims Mike Frost’s 1994 tell-all book, Spyworld.

Not long after it was published, CSEC got a watchdog.

Since 1996, a small office led by a series of retired judges known as commissioners has inspected the agency’s activities to ensure that they are legal. In 2006, the role was given to Charles Gonthier, who had stepped down three years earlier from a 13-year stint as a justice on the Supreme Court of Canada.

“He has to be one of the most low-profile judges we have had,” University of Alberta law professor Sanjeev Anand told The Globe when the judge retired. “A lot of people remember him for being very quiet.”

Those qualities made him perfect for a new job, which depended on secrecy. But on Jan. 9, 2008, Mr. Gonthier spoke up, with his top-secret missive criticizing the metadata program.

Released only in part under access-to-information legislation, the judge’s report is so heavily redacted that reading it is a real exercise in interpretation. He had concerns about overbroad metadata definitions and lax record keeping. But his real gripe was how the program contemplated handing over “foreign” intelligence to domestic agencies: Could this CSEC program really be said to be not “directed at” Canadians?

To Mr. Gonthier, it appeared that CSIS and the RCMP might get to hear things about Canadians without obtaining the usual warrants. He asked whether the fruits of a “foreign-intelligence collection” program ought to be used “in the context of a criminal or national security investigation of a Canadian in Canada.”

The report had been slow in coming, but Mr. Gonthier had begun raising these issues earlier, which seemed to lead to the April, 2007, temporary halt on some operations. “The CSEC commissioner asked questions about some activities related to metadata,” CSEC spokesman Ryan Foreman confirmed to The Globe. “While those questions were being addressed, the chief of CSEC voluntarily suspended those activities until clarifications were made.”

A 2011 memo advised Mr. Adams on how to brief the government now that the old metadata operations manual had been ripped up and a new, improved one put in its place. Eventually, senior security bureau- crats would ask new Defence Minister Peter MacKay to make these changes official: Would the minister sign a new ministerial directive, with slightly altered language and altered privacy protections?

The new directive Mr. MacKay signed on Nov. 21, 2011, looks remarkably like the old one Mr. Graham signed, though the redactions make it impossible to say for sure.

It held to the same line: “Metadata is information associated with a telecommunication … and not a communication,” as another briefing note put it to Mr. MacKay before he signed off on the renewed powers.

Mr. Adams left CSEC in early 2012 and was replaced by career bureaucrat John Forster. The broad program continues today under the new rules, though the details remain unclear.

After The Globe’s first report this week on the metadata program, Opposition MPs grilled Mr. MacKay during Question Period: What was this thing? Why hadn’t the minister told anyone about it? And was Ottawa spying on Canadians’ e-mails – yes or no?

Mr. MacKay defended and deflected. Canadians, he said, can trust that the program he signed off on really protects privacy. It did not allow “looking at the information of Canadians” and “does not target communications of Canadians.”

It’s difficult to talk about these matters, of course: South of the border, the U.S. Director of National Intelligence has recently admitted that he had been answering questions about the NSA in “the least untruthful manner” that he could.

Mr. Gonthier died at 81 in 2009, while still serving as CSEC commissioner. His successor, Robert Décary, took the unusual step of releasing a public statement late this week.

It said in part: “I have reviewed CSEC metadata activities and have found them to be in compliance with the law and to be subject to comprehensive and satisfactory measures to protect the privacy of Canadians. However, given that these activities may impact the privacy of Canadians, I had already approved, prior to recent events, the start of a specific review relating to these activities.”

As for CSEC, “it’s like a phoenix rising,” said one federal security official, remarking on the new building, with its glass walkway to CSIS headquarters – a literal bridge of the divide between foreign and domestic intelligence in the future.

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