E-5.401Employment Equity ActSOR/2002-423200211

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EMPLOYMENT EQUITY ACTRegulations Adapting the Employment Equity Act in Respect of the Canadian Security Intelligence ServiceP.C.2002-1959  200211

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Whereas the Governor in Council, taking into account the operational effectiveness of the Canadian Security Intelligence Service, considers it necessary to adapt the Employment Equity Acta to accommodate the Service;And whereas, pursuant to subsection 41(6) of that Act, the Solicitor General of Canada has been consulted on the annexed regulations;Therefore, Her Excellency the Governor General in Council, on the recommendation of the Treasury Board and the Minister of Labour, pursuant to subsection 41(5) of the Employment Equity Acta, hereby makes the annexed Regulations Adapting the Employment Equity Act in respect of the Canadian Security Intelligence Service.aS.C. 1995, c. 44PURPOSE

1.These Regulations adapt the Employment Equity Act to accommodate the Canadian Security Intelligence Service taking into account its operational effectiveness.

ADAPTATION OF PART II OF THE ACT

2.The Employment Equity Act is adapted by adding the following after the title of Part II:Definitions

21.1The definitions in this section apply in this Part.Commission staff means a compliance officer or other person who acts on behalf of or under the direction of the Commission and includes a member of the Commission. (agent de la Commission)Director means the Director of the Service. (directeur)national security information means information the disclosure of which would be injurious to the ability of the Service to perform its duties and functions under the Canadian Security Intelligence Service Act. (renseignement sur la sécurité nationale)secure room means a secure room referred to in article 2.15 of Chapter 2-2 of the Security Policy, as amended from time to time, published by the Treasury Board of Canada Secretariat. (pièce sécuritaire)security container means a container referred to in article 4.2 of Chapter 2-2 of the Security Policy, as amended from time to time, published by the Treasury Board of Canada Secretariat. (coffre de sécurité)Service means the Canadian Security Intelligence Service. (Service)special proceedings means the proceedings of a Tribunal to consider a request under subsection 27(1) or an application under subsection 27(2) that involve the Service and that are likely to involve national security information. (délibérations spéciales)

3.Section 23 of the Act is adapted as follows:

23.(1)For the purposes of ensuring compliance with the provisions referred to in subsection 22(1), a compliance officer may conduct a compliance audit of an employer and, for that purpose, may(a)at any reasonable time, enter any place in which the officer believes on reasonable grounds there is any thing relevant to the enforcement of any of those provisions; and(b)require any person to produce for examination or copying any record, book of account or other document that the officer believes on reasonable grounds contains information that is relevant to the enforcement of any of those provisions.(2)In conducting a compliance audit, a compliance officer may(a)reproduce or cause to be reproduced any record from a data processing system in the form of a printout or other intelligible output and remove the printout or other output for examination and copying; and(b)use or cause to be used any copying equipment at the place to make copies of any record, book of account or other document.(2.1)Despite subsections (1) and (2), in conducting a compliance audit of the Service that involves national security information, a compliance officer(a)shall review documents containing national security information only in a secure room provided by the Service;(b)shall not reproduce the whole or part of any document containing national security information, but may make written summaries of any such document by any means; and(c)shall not remove a document containing national security information from the secure room, but may remove the summaries, personal notes, draft reports or other documents prepared by the officer that contain national security information.(2.2)A compliance officer shall store the summaries and any other document prepared by the compliance officer that contain national security information in a secure container at the officer’s workplace.(2.3)If national security information was reviewed by a compliance officer during a compliance audit of the Service, the compliance officer shall provide the Director with a copy of any report, direction, request for undertaking or other document prepared by the officer as a result of the audit before the document is disclosed to any person who is not Commission staff or who is not a member of a Tribunal. The Director shall forthwith review the document for the sole purpose of determining whether it contains national security information.(2.4)For the purposes of subsections (2.1) to (2.3), a declaration of the Director that information is national security information is conclusive proof of that fact.(2.5)If the Director makes a declaration with respect to information contained in a document provided under subsection (2.3), the compliance officer shall ensure that the national security information is removed forthwith from the document.(3)Compliance officers shall be furnished with certificates in a form established by the Commission certifying their designation as compliance officers and, on entering a place under paragraph (1)(a), a compliance officer shall show the certificate to the person in charge of the place if the person requests proof of the officer’s designation.(4)The person in charge of a place entered pursuant to paragraph (1)(a) and every person found in the place shall(a)give the compliance officer all reasonable assistance to enable the officer to exercise the powers conferred on compliance officers by this section; and(b)provide the officer with any information relevant to the enforcement of this Act or the regulations that the officer may reasonably require.(5)When the Service is advised by a portion of the public service of Canada or other portion of the public sector referred to in subsection 4(1) that a compliance audit may lead to the disclosure of national security information that was provided to it by the Service, the Service shall examine all relevant documents held by that portion of the public service or public sector for the sole purpose of determining whether the documents contain national security information.(6)For the purposes of subsection (5), a declaration of the Director that information is national security information is conclusive proof of that fact.(7)If the Director makes a declaration with respect to information contained in a document examined under subsection (5), the portion of the public service or public sector that was provided with the document shall ensure that the national security information is removed from the document.

4.The Act is adapted by adding the following after section 24:

24.1Every compliance officer who receives or obtains national security information as a result of a compliance audit of the Service may disclose or permit to be disclosed that information only to Commission staff who receive or obtain information relating to a compliance audit under this Act or to a member of a Tribunal.

24.2(1)In this section, “audit document” means a document prepared by Commission staff as a result of a compliance audit of the Service under this Act.(2)No person who is Commission staff may disclose or permit to be disclosed an audit document to anyone who is not Commission staff unless(a)the document is submitted to the Director to determine if the document contains national security information; and(b)any information determined by the Director to be national security information is removed from the document.(3)For the purposes of paragraph (2)(a), a declaration of the Director that information is national security information is conclusive proof of that fact.

5.The Act is adapted by adding the following after section 28:

28.1(1)When a Tribunal is formed to deal with a matter concerning the Service, the Tribunal shall, before hearing the matter, notify the Director.(2)After the Director receives the notice, the Director shall forthwith determine whether the proceedings are likely to involve national security information.(3)If the Director determines that the proceedings of the Tribunal are likely to involve national security information, the Director shall notify the Tribunal and the Commission of(a)the level at which the national security information is classified pursuant to the Security Policy, as amended from time to time, published by the Treasury Board of Canada Secretariat;(b)the portions of the Tribunal proceedings that must be conducted in camera; and(c)the security requirements that the Tribunal must apply to any person present during the in camera portions of the Tribunal proceedings.(4)The Service, the Commission and the Tribunal shall decide on the sequence of the in camera and public portions of the proceedings.

28.2For the purposes of section 28.1, a declaration of the Director that proceedings of the Tribunal are likely to involve national security information is conclusive proof of that fact.

28.3At the request of the Tribunal, the Service shall prepare a summary — that does not contain national security information — of the information disclosed during the in camera portions of the special proceedings, and the summary becomes part of the public record of the proceedings.

28.4The parties appearing during the in camera portions of the special proceedings(a)shall satisfy any security requirements applicable to, and take any oath of secrecy required to be taken by, persons who normally have access to and use of national security information; and(b)shall not disclose or permit to be disclosed any national security information revealed during the in camera portions of the special proceedings.

28.5The Tribunal shall conduct the in camera portions of the special proceedings in a secure room in Ottawa provided by the Service or in any other secure room designated by the Director.

28.6The Tribunal shall store all exhibits and other documents relating to special proceedings in a secure container and shall not disclose them except in accordance with this Act.

28.7A person who is present at special proceedings and who is not Commission staff may examine any exhibit that contains national security information and that was entered in the person’s presence only if(a)the Tribunal approves;(b)the person possesses the requisite security clearance for the national security information; and(c)the examination is conducted in the presence of a Tribunal officer or an employee of the Service who possesses the requisite security clearance for the national security information.

6.The Act is adapted by adding the following after section 29:

29.1(1)After a Tribunal holds special proceedings, the Tribunal shall provide the Director with a copy of its decision 30 days before the decision is intended to be released to any person.(2)The Director shall forthwith review the decision for the sole purpose of determining whether the decision contains national security information and shall within a reasonable time notify the Tribunal of the Director’s determination.

29.2A declaration of the Director that a decision of a Tribunal contains national security information is conclusive proof of that fact and, on receiving such a declaration, the Tribunal must ensure that, before the decision is released to the parties, the decision is revised so that no national security information is revealed in the decision.

7.The Act is adapted by adding the following after section 34:Surrender of Documents

34.1A compliance officer shall surrender to the Service all documents that contain national security information(a)when the Service has complied with its obligations under this Act;(b)when the Service has complied with an undertaking referred to in section 25; or(c)30 days after the making of an order of a Tribunal if there is no judicial review, or 30 days after a judicial review or any appeal of the judicial review becomes final.

34.2(1)A Tribunal shall surrender to the Service, within 30 days after the end of special proceedings, all documents that form part of the public record of the proceedings and the Service shall retain the documents for two years.(2)The Tribunal shall place all other documents of the special proceedings in a sealed envelope bearing the appropriate security classification and shall, within 30 days after the end of the special proceedings, surrender the envelope to the Service for destruction.(3)If there is an application for judicial review, a judicial review or an appeal from the judicial review, the Tribunal shall surrender the documents referred to in subsections (1) and (2) within the latest of(a)30 days after an application for judicial review is withdrawn or a decision of a court refusing an application for judicial review,(b)30 days after a decision on a judicial review of the special proceedings, and(c)30 days after a decision on the last appeal of a judicial review of the special proceedings.

COMING INTO FORCE

8.These Regulations come into force on the day on which they are registered.