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National Security and Intelligence Review Agency Act (S.C. 2019, c. 13, s. 2)

Act current to 2022-05-02 and last amended on 2019-08-01. Previous Versions

National Security and Intelligence Review Agency Act

S.C. 2019, c. 13, s. 2

Assented to 2019-06-21

An Act to establish the National Security and Intelligence Review Agency

[Enacted by section 2 of chapter 13 of the Statutes of Canada, 2019, in force July 12, 2019, see SI/2019-67.]

Short Title

Marginal note:Short title

 This Act may be cited as the National Security and Intelligence Review Agency Act.

Definitions

Marginal note:Definitions

 The following definitions apply in this Act.

appropriate Minister

appropriate Minister means

  • (a) with respect to a department named in Schedule I to the Financial Administration Act, the Minister presiding over the department;

  • (b) with respect to a division or branch of the federal public administration set out in column I of Schedule I.1 to the Financial Administration Act, the Minister set out in column II of that schedule;

  • (c) with respect to a corporation named in Schedule II to the Financial Administration Act, the Minister designated as the appropriate Minister by order of the Governor in Council made under that Act;

  • (d) with respect to a parent Crown corporation as defined in subsection 83(1) of the Financial Administration Act, the appropriate Minister as defined in that subsection; or

  • (e) with respect to the Canadian Forces, the Minister of National Defence. (ministre compétent)

department

department means, other than in subsection 42(2), a department named in Schedule I to the Financial Administration Act, a division or branch of the federal public administration  —  other than a review body and the office of the Intelligence Commissioner —  set out in column I of Schedule I.‍1 to that Act, a corporation named in Schedule II to that Act, a parent Crown corporation as defined in subsection 83(1) of that Act or the Canadian Forces. (ministère)

deputy head

deputy head means, except in section 42,

  • (a) with respect to a department named in Schedule I to the Financial Administration Act, the deputy minister of that department;

  • (b) with respect to the Canadian Forces, the Chief of the Defence Staff;

  • (c) with respect to the Royal Canadian Mounted Police, the Commissioner of the Royal Canadian Mounted Police;

  • (d) with respect to the Canadian Security Intelligence Service, the Director;

  • (e) with respect to any other portion of the federal public administration, the person designated by order of the Governor in Council to be the deputy head of that portion of the federal public administration for the purposes of this Act; and

  • (f) with respect to any inquiry established under the Inquiries Act, if there is a single commissioner, that commissioner or, if there is more than one commissioner, the commissioner designated by order of the Governor in Council to be the deputy head of that inquiry for the purposes of this Act. (administrateur général)

Director

Director means the Director of the Canadian Security Intelligence Service. (directeur)

Review Agency

Review Agency means the National Security and Intelligence Review Agency established under section 3. (Office de surveillance)

review body

review body means

  • (a) the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police established by subsection 45.29(1) of the Royal Canadian Mounted Police Act; or

  • (b) the National Security and Intelligence Committee of Parliamentarians. (organisme de surveillance)

Review Agency and Members

Marginal note:Review Agency established

 The National Security and Intelligence Review Agency is established, consisting of a Chair and no fewer than three and no more than six other members.

Marginal note:Appointment of members

  •  (1) The Governor in Council is to appoint, on the recommendation of the Prime Minister, the members of the Review Agency.

  • Marginal note:Consultation

    (2) A member may be appointed to the Review Agency only after consultation by the Prime Minister with

    • (a) the persons referred to in paragraphs 62(a) and (b) of the Parliament of Canada Act;

    • (b) the leader of every caucus and of every recognized group in the Senate;

    • (c) the Leader of the Opposition in the House of Commons; and

    • (d) the leader in the House of Commons of each party having at least twelve members in that House.

  • Marginal note:Term of office

    (3) Each member of the Review Agency must be appointed to hold office during good behaviour for a term not exceeding five years.

  • Marginal note:Reappointment

    (4) Each member of the Review Agency, on the expiry of their first term of office, is eligible to be reappointed for one further term.

  • Marginal note:Designation of Chair

    (5) The Governor in Council is to designate, on the recommendation of the Prime Minister, the Chair of the Review Agency from among the members of the Agency.

  • Marginal note:Designation of Vice-chair

    (6) The Governor in Council may designate, on the recommendation of the Prime Minister, the Vice-chair of the Review Agency from among the members of the Agency.

  • Marginal note:Full- or part-time members

    (7) The Chair and Vice-chair may be designated to hold office on a full-time or part-time basis. Every member of the Review Agency who is not designated as the Chair or Vice-chair holds office on a part-time basis.

Marginal note:Acting Chair

  •  (1) If the Chair is absent or incapacitated or if the office of Chair is vacant, the Vice-chair of the Review Agency is to act as the Chair; but if the Vice-chair is absent or incapacitated, or if that office is vacant, the Chair may designate another member of the Agency to act as the Chair or, if no such designation is made, the Agency must designate a member of the Agency to act as the Chair.

  • Marginal note:Limit

    (2) No member designated under subsection (1) may act as the Chair for more that 90 days without the approval of the Governor in Council.

Marginal note:Remuneration and expenses

  •  (1) Each member of the Review Agency who holds office on a part-time basis is entitled to be paid, for each day that the member exercises powers and performs duties and functions under this Act, the remuneration that is fixed by the Governor in Council and, in accordance with Treasury Board directives, reasonable travel and living expenses incurred in the exercise of their powers and the performance of their duties and functions while absent from their ordinary place of residence.

  • Marginal note:Office held on full-time basis

    (2) The Chair and Vice-chair, if they are designated to hold office on a full-time basis, are entitled to be paid the remuneration that is fixed by the Governor in Council and, in accordance with Treasury Board directives, reasonable travel and living expenses incurred in the exercise of their powers and the performance of their duties and functions while absent from their ordinary place of work.

Marginal note:Acts and regulations applicable

 Each member of the Review Agency is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act. Each full-time member of the Agency is also deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

Marginal note:Agency procedures

 Subject to this Act, the Review Agency may determine the procedure to be followed in the exercise of its powers or the performance of any of its duties or functions.

Mandate

Marginal note:Review and investigation

  •  (1) The mandate of the Review Agency is to

    • (a) review any activity carried out by the Canadian Security Intelligence Service or the Communications Security Establishment;

    • (b) review any activity carried out by a department that relates to national security or intelligence;

    • (c) review any matter that relates to national security or intelligence that a minister of the Crown refers to the Agency; and

    • (d) investigate

  • Marginal note:Review of measures

    (2) In the course of its review of activities carried out by the Canadian Security Intelligence Service, the Review Agency must, each calendar year, review at least one aspect of the Service’s performance in taking measures to reduce threats to the security of Canada.

  • Marginal note:Review — ministerial direction

    (2.1) The Review Agency must review the implementation of significant aspects of every new or modified ministerial direction that is issued to any of the following:

    • (a) the Canadian Security Intelligence Service;

    • (b) the Communications Security Establishment; and

    • (c) any other department if the ministerial direction relates to national security or intelligence.

  • Marginal note:Avoiding Complicity in Mistreatment by Foreign Entities Act

    (2.2) In the course of its review of activities carried out by departments, the Review Agency must, each calendar year, review the implementation of all directions issued under the Avoiding Complicity in Mistreatment by Foreign Entities Act.

  • Marginal note:Findings and recommendations

    (3) In the course of its reviews, the Review Agency may make any finding or recommendation that it considers appropriate, including findings and recommendations relating to

    • (a) a department’s compliance with the law and any applicable ministerial directions; and

    • (b) the reasonableness and necessity of a department’s exercise of its powers.

Access to Information

Marginal note:Right of access — reviews

  •  (1) Despite any other Act of Parliament and subject to section 12, the Review Agency is entitled, in relation to its reviews, to have access in a timely manner to any information that is in the possession or under the control of any department.

  • Marginal note:Protected information

    (2) Under subsection (1), the Review Agency is entitled to have access to information that is subject to any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

  • Marginal note:For greater certainty

    (3) For greater certainty, the disclosure to the Review Agency under this section of any information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege does not constitute a waiver of those privileges or that secrecy.

Marginal note:Right of access — complaints

 Despite any other Act of Parliament and any privilege under the law of evidence and subject to section 12, the Review Agency is entitled to have access in a timely manner to the following information:

  • (a) in relation to a complaint made under subsection 16(1), any information that relates to the complaint and that is in the possession or under the control of the Canadian Security Intelligence Service or the Communications Security Establishment;

  • (b) in relation to a complaint made under subsection 17(1), any information that relates to the complaint and that is in the possession or under the control of the Canadian Security Intelligence Service or the Communications Security Establishment;

  • (c) in relation to a complaint made under subsection 18(3), any information that relates to the complaint and that is in the possession or under the control of the deputy head concerned, the Canadian Security Intelligence Service or the Communications Security Establishment; and

  • (d) in relation to a complaint referred to it under subsection 45.53(4.1) or 45.67(2.1) of the Royal Canadian Mounted Police Act, any information that relates to the complaint and that is in the possession or under the control of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police established by subsection 45.29(1) of the Royal Canadian Mounted Police Act, the Royal Canadian Mounted Police, the Canadian Security Intelligence Service or the Communications Security Establishment.

Marginal note:Documents and explanations

  •  (1) Under sections 9 and 10, the Review Agency is entitled to receive from the deputy head or employees of the department concerned any documents and explanations that the Agency deems necessary for the exercise of its powers and the performance of its duties and functions.

  • Marginal note:Decision — Review Agency

    (2) For the purposes of sections 9 and 10, the Review Agency is entitled to decide whether information relates to the review or complaint in question.

  • Marginal note:Inconsistency or conflict

    (3) In the event of any inconsistency or conflict between sections 9 and 10 and any provision of an Act of Parliament other than this Act, section 9 or 10 prevails to the extent of the inconsistency or conflict.

Marginal note:Exception

 The Review Agency is not entitled to have access to a confidence of the Queen’s Privy Council for Canada the disclosure of which could be refused under section 39 of the Canada Evidence Act.

Review Body

Marginal note:Cooperation

 The Review Agency and each review body are to take all reasonable steps to cooperate with each other to avoid any unnecessary duplication of work by the Review Agency and that review body in relation to the fulfilment of their respective mandates.

Marginal note:Provision of information to Review Agency

  •  (1) Despite any provision of any other Act of Parliament — including section 45.47 of the Royal Canadian Mounted Police Act — and subject to subsection (2), a review body may provide to the Review Agency information that is in its possession or under its control and that is related, in the review body’s opinion, to the fulfilment of the Agency’s mandate under paragraphs 8(1)(a) to (c).

  • Marginal note:Exception

    (2) The review body must not provide to the Review Agency information that is referred to in section 12.

Marginal note:Civilian Review and Complaints Commission

  •  (1) The Review Agency may provide to the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police information that is obtained from — or that is created by the Agency from information obtained from — the Royal Canadian Mounted Police and that is related, in the Agency’s opinion, to the fulfilment of that review body’s mandate under subsection 45.34(1) of the Royal Canadian Mounted Police Act.

  • Marginal note:Exception

    (2) The Review Agency must not provide to the review body information that is referred to in subsection 45.42(1) of the Royal Canadian Mounted Police Act.

Marginal note:National Security and Intelligence Committee of Parliamentarians

Coordination

Marginal note:Coordination with Privacy Commissioner

  •  (1) When fulfilling its mandate under any of paragraphs 8(1)(a) to (c), the Review Agency may coordinate its activities with those of the Privacy Commissioner under subsection 37(1) of the Privacy Act to avoid any unnecessary duplication of work.

  • Marginal note:Provision of information

    (2) The Review Agency may, to the extent that it considers it necessary for the purpose of subsection (1), provide the Privacy Commissioner with information concerning its reviews under any of paragraphs 8(1)(a) to (c).

Complaints

Marginal note:Complaints — Canadian Security Intelligence Service

  •  (1) Any person may make a complaint to the Review Agency with respect to any activity carried out by the Canadian Security Intelligence Service and the Agency must, subject to subsection (2), investigate the complaint if

    • (a) the complainant has made a complaint to the Director with respect to that activity and the complainant has not received a response within a period of time that the Agency considers reasonable or is dissatisfied with the response given; and

    • (b) the Agency is satisfied that the complaint is not trivial, frivolous or vexatious or made in bad faith.

  • Marginal note:Other redress available

    (2) The Review Agency must not investigate a complaint in respect of which the complainant is entitled to seek redress by means of a grievance procedure established under the Canadian Security Intelligence Service Act or the Federal Public Sector Labour Relations Act.

Marginal note:Complaints — Communications Security Establishment

  •  (1) Any person may make a complaint to the Review Agency with respect to any activity carried out by the Communications Security Establishment and the Agency must, subject to subsection (2), investigate the complaint if

    • (a) the complainant has made a complaint to the Chief of the Communications Security Establishment with respect to that activity and the complainant has not received a response within a period of time that the Agency considers reasonable or is dissatisfied with the response given; and

    • (b) the Agency is satisfied that the complaint is not trivial, frivolous or vexatious or made in bad faith.

  • Marginal note:Other redress available

    (2) The Review Agency must not investigate a complaint in respect of which the complainant is entitled to seek redress by means of a grievance procedure established under the Communications Security Establishment Act or the Federal Public Sector Labour Relations Act.

Marginal note:Denial of security clearance

  •  (1) If, by reason only of the denial of a security clearance required by the Government of Canada, a decision is made by a deputy head to deny employment to an individual or to dismiss, demote or transfer an individual or to deny a promotion or transfer to an individual, the deputy head must send, within 10 days after the decision is made, a notice informing the individual of the denial of the security clearance.

  • Marginal note:Denial of security clearance

    (2) If, by reason only of the denial of a security clearance required by the Government of Canada to be given in respect of an individual, a decision is made to deny the individual or any other person a contract to provide goods or services to the Government of Canada, the deputy head concerned must send, within 10 days after the decision is made, a notice informing the individual and, if applicable, the other person of the denial of the security clearance.

  • Marginal note:Receipt and investigation of complaints

    (3) The Review Agency must receive and investigate a complaint from

    • (a) any individual referred to in subsection (1) who has been denied a security clearance; or

    • (b) any person who has been denied a contract to provide goods or services to the Government of Canada by reason only of the denial of a security clearance in respect of that person or any individual.

  • Marginal note:Time within which complaint is to be made

    (4) A complaint under subsection (3) must be made within 30 days after receipt of the notice referred to in subsection (1) or (2) or within any longer period that the Review Agency allows.

Marginal note:Complaints — Royal Canadian Mounted Police

 The Review Agency must receive and investigate a complaint referred to it under subsection 45.53(4.1) or 45.67(2.1) of the Royal Canadian Mounted Police Act if the Agency is satisfied that the complaint is not trivial, frivolous or vexatious or made in bad faith.

Marginal note:Complaints submitted on behalf of complainants

 Nothing in this Act precludes the Review Agency from receiving and investigating complaints referred to in subsections 16(1), 17(1) and 18(3) that are submitted by a person authorized by the complainant to act on behalf of the complainant, and a reference to a complainant in any other provision of this Act includes a reference to a person so authorized.

Marginal note:Written complaint

 A complaint under subsection 16(1), 17(1) or 18(3) must be made to the Review Agency in writing unless the Agency authorizes otherwise.

Marginal note:Statement to complainant

 The Review Agency must, as soon as feasible after receiving a complaint made under subsection 18(3), send to the complainant a statement summarizing the information available to the Agency that will enable the complainant to be as fully informed as possible of the circumstances giving rise to the denial of the security clearance and must send a copy of the statement to the Director and the deputy head concerned.

Informal Resolution

Marginal note:Informal resolution

  •  (1) The Review Agency may attempt to resolve the complaint informally.

  • Marginal note:Agreement to informal resolution in writing

    (2) The resolution of a complaint through an informal process, as well as the agreement of the parties to that resolution, must be set out in writing and a copy is to be provided to the Review Agency.

Investigations

Marginal note:Notice of intention to investigate

 Before commencing an investigation referred to in subsection 18(3), the Review Agency must inform the Director and, if applicable, the deputy head concerned of its intention to carry out the investigation and of the substance of the matter.

Marginal note:Investigations in private

  •  (1) Every investigation by the Review Agency is to be conducted in private.

  • Marginal note:Right to make representations

    (2) In the course of an investigation of a complaint, the complainant, the deputy head concerned and, if the complaint is made under subsection 18(3), the Director must be given an opportunity to make representations to the Review Agency, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Agency by any other person.

Marginal note:Canadian Human Rights Commission may comment

 In the course of an investigation of a complaint, the Review Agency must, if appropriate, ask the Canadian Human Rights Commission for its opinion or comments with respect to the complaint.

Marginal note:Powers of Review Agency

 The Review Agency has, in relation to the investigation of any complaint, the power

  • (a) to summon and enforce the appearance of persons before the Agency and to compel them to give oral or written evidence on oath and to produce the documents and things that the Agency deems requisite to the full investigation and consideration of the complaint in the same manner and to the same extent as a superior court of record;

  • (b) to administer oaths; and

  • (c) to receive and accept the evidence and other information, whether on oath or by affidavit or otherwise, that the Agency considers appropriate, whether or not that evidence or information is or would be admissible in a court of law.

Marginal note:Duty to suspend

 Despite any provision of this Act, the Review Agency must suspend an investigation if, after consultation with the appropriate department, the Agency is of the opinion that continuing the investigation would compromise or seriously hinder an ongoing criminal investigation or proceeding.

Marginal note:Evidence in other proceedings

 Except in a prosecution under section 132 or 136 of the Criminal Code in respect of a statement made under this Act, evidence given by a person in proceedings under this Act and evidence of the existence of the proceedings are inadmissible against that person in a court or in any other proceedings.

Marginal note:Report of findings

  •  (1) The Review Agency must,

    • (a) on completion of an investigation in relation to a complaint under subsection 16(1), provide the appropriate Minister and the Director with a report containing the findings of the investigation and any recommendations that the Agency considers appropriate;

    • (b) on completion of an investigation in relation to a complaint under subsection 17(1), provide the appropriate Minister and the Chief of the Communications Security Establishment with a report containing the findings of the investigation and any recommendations that the Agency considers appropriate; and

    • (c) on completion of an investigation in relation to a complaint referred to it under subsection 45.53(4.1) or 45.67(2.1) of the Royal Canadian Mounted Police Act, provide the appropriate Minister and the Commissioner of the Royal Canadian Mounted Police with a report containing the findings of the investigation and any recommendations that the Agency considers appropriate.

  • Marginal note:Complainant

    (2) After providing a report under any of paragraphs (1)(a) to (c), the Review Agency must report the findings of the investigation to the complainant and may report to the complainant any recommendations it thinks fit.

  • Marginal note:Report — denial of security clearance

    (3) On completion of an investigation in relation to a complaint under subsection 18(3), the Review Agency must provide the Minister of Public Safety and Emergency Preparedness, the Director, the deputy head concerned and the complainant with a report containing any recommendations that the Agency considers appropriate, and those findings of the investigation that the Agency thinks fit to report to the complainant.

Marginal note:Review Agency member authorized to act alone

 A member of the Review Agency may exercise any of the powers or perform any of the duties and functions of the Agency under sections 16 to 29 in relation to complaints.

Departmental Study

Marginal note:Power — Review Agency

  •  (1) For the purpose of ensuring that a department’s activities that relate to national security or intelligence are carried out in compliance with the law and any applicable ministerial directions, and are reasonable and necessary, the Review Agency may direct the department to conduct a study of those activities.

  • Marginal note:Report

    (2) A department that conducts a study under subsection (1) must provide the appropriate Minister with a report on the study and must give a copy of the report to the Review Agency at the same time.

Reports to Ministers

Marginal note:Annual report — Canadian Security Intelligence Service

  •  (1) The Review Agency must, in relation to every calendar year, submit to the appropriate Minister a report with respect to the activities of the Canadian Security Intelligence Service during that period.

  • Marginal note:Contents of report

    (2) The annual report must include information relating to

    • (a) the compliance of the Canadian Security Intelligence Service with the law and any applicable ministerial directions; and

    • (b) the reasonableness and necessity of the Canadian Security Intelligence Service’s exercise of its powers.

Marginal note:Annual report — Communications Security Establishment

  •  (1) The Review Agency must, in relation to every calendar year, submit to the appropriate Minister a report with respect to the activities of the Communications Security Establishment during that period.

  • Marginal note:Contents of report

    (2) The annual report must include information relating to

    • (a) the compliance of the Communications Security Establishment with the law and any applicable ministerial directions; and

    • (b) the reasonableness and necessity of the Communications Security Establishment’s exercise of its powers.

Marginal note:Report of review

 The Review Agency may submit to the appropriate Minister a report with respect to any matter that relates to a department and that is the subject of a review by the Agency.

Marginal note:Compliance report

  •  (1) The Review Agency must submit to the appropriate Minister a report with respect to any activity that is related to national security or intelligence and carried out by a department if, in the Agency’s opinion, the activity may not be in compliance with the law. The Agency must give a copy of the report to the deputy head concerned.

  • Marginal note:Report and comments to Attorney General of Canada

    (2) As soon as feasible after the Minister receives a report under subsection (1), he or she must give a copy of the report to the Attorney General of Canada, together with any comment that he or she considers appropriate in the circumstances.

  • Marginal note:Copy to Review Agency

    (3) The Minister must give a copy of anything given to the Attorney General of Canada under subsection (2) to the Review Agency at the same time.

Marginal note:Copy to Intelligence Commissioner

 The Review Agency must give a copy of any report, or any part of a report, that it submits under any of sections 32 to 35 to the Intelligence Commissioner if that report or part relates to that Commissioner’s powers, duties and functions.

Marginal note:Annual briefing — Canadian Security Intelligence Service

  •  (1) At least once a calendar year the Chair of the Review Agency, or a person designated by the Chair, must meet with the appropriate Minister and brief him or her on the exercise of, or the performance by, the Canadian Security Intelligence Service of its powers, duties and functions.

  • Marginal note:Annual briefing — Communications Security Establishment

    (2) At least once a calendar year the Chair of the Review Agency, or a person designated by the Chair, must meet with the appropriate Minister and brief him or her on the exercise of, or the performance by, the Communications Security Establishment of its powers, duties and functions.

  • Marginal note:Other briefings

    (3) The Chair of the Review Agency, or a person designated by the Chair, may meet with any appropriate Minister and brief him or her on a department’s performance in carrying out any activity related to national security or intelligence.

Public Reports

Marginal note:Report to Prime Minister

  •  (1) The Review Agency must, each calendar year, submit to the Prime Minister a report with respect to its activities during the previous calendar year and the findings and recommendations it made during the calendar year in question.

  • Marginal note:Tabling

    (2) The Prime Minister must cause to be laid before each House of Parliament, on any of the first 15 days on which that House is sitting after a report is submitted under subsection (1), a copy of the report.

Marginal note:Security of Canada Information Disclosure Act

  •  (1) The Review Agency must, every calendar year, submit to the Minister of Public Safety and Emergency Preparedness a report respecting the disclosure of information under the Security of Canada Information Disclosure Act during the previous calendar year.

  • Marginal note:Tabling

    (2) The Minister of Public Safety and Emergency Preparedness must cause to be laid before each House of Parliament, on any of the first 15 days on which that House is sitting after a report is submitted under subsection (1), a copy of the report.

Marginal note:Special report

  •  (1) If the Review Agency is of the opinion that it is in the public interest to report on any matter related to its mandate, it may submit a special report to the appropriate Minister.

  • Marginal note:Tabling

    (2) The appropriate Minister must cause to be laid before each House of Parliament, on any of the first 15 days on which that House is sitting after a report is submitted under subsection (1), a copy of the report.

Secretariat

Marginal note:Secretariat established

  •  (1) The National Security and Intelligence Review Agency Secretariat is established.

  • Marginal note:Role

    (2) The Secretariat is to assist the Review Agency in fulfilling its mandate.

Marginal note:Executive director

  •  (1) There is to be an executive director of the Secretariat, who is to be appointed by the Governor in Council to hold office during pleasure for a term of up to five years. The executive director is eligible to be reappointed on the expiry of a first or subsequent term of office.

  • Marginal note:Deputy head

    (2) The executive director has the rank and all the powers of a deputy head of a department.

Marginal note:Absence or incapacity

 If the executive director is absent or incapacitated or the office of executive director is vacant, the Governor in Council may appoint another person to act as executive director.

Marginal note:Remuneration and expenses

  •  (1) The executive director is entitled to be paid the remuneration that is fixed by the Governor in Council and is entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred in the performance of his or her duties or functions while absent from his or her ordinary place of work.

  • Marginal note:Compensation

    (2) The executive director is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act, to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.

Marginal note:Personnel

  •  (1) The executive director has exclusive authority to

    • (a) appoint or lay off the Secretariat’s employees, revoke their appointment or terminate their employment; and

    • (b) establish standards, procedures and processes governing staffing, including the appointment or lay-off of employees, revocation of their appointment or termination of their employment otherwise than for cause.

  • Marginal note:Right of employer

    (2) Nothing in the Federal Public Sector Labour Relations Act is to be construed so as to affect the right or authority of the executive director to deal with the matters referred to in subsection (1).

  • Marginal note:Political activities

    (3) Part 7 of the Public Service Employment Act applies to the executive director and the Secretariat’s employees. For the purposes of that Part, the executive director is deemed to be a deputy head, and the Secretariat’s employees are deemed to be employees, as defined in subsection 2(1) of that Act.

Marginal note:Powers of the executive director

 In exercising his or her authority under subsection 45(1), the executive director may

  • (a) determine the human resources requirements of the Secretariat and provide for the allocation and effective utilization of human resources in the Secretariat;

  • (b) provide for the classification of positions in and employees of the Secretariat;

  • (c) after consultation with the President of the Treasury Board, determine and regulate the pay to which Secretariat employees are entitled for services rendered, the hours of work and leave of those employees and any related matters;

  • (d) after consultation with the President of the Treasury Board, determine and regulate the payments that may be made to Secretariat employees by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment;

  • (e) determine the learning, training and development requirements of the Secretariat employees and fix the terms on which the learning, training and development may be carried out;

  • (f) provide for the awards that may be made to Secretariat employees for outstanding performance of their duties, for other meritorious achievement in relation to their duties or for inventions or practical suggestions for improvements;

  • (g) establish standards of discipline and set penalties, including termination of employment, suspension, demotion to a position at a lower maximum rate of pay and financial penalties;

  • (h) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of Secretariat employees for reasons other than breaches of discipline or misconduct;

  • (i) establish policies respecting the exercise of the powers granted by this section; and

  • (j) provide for any other matters, including terms and conditions of employment not otherwise specifically provided for in this section, that the executive director considers necessary for effective human resources management in the Secretariat.

Marginal note:Negotiation of collective agreements

 Before entering into collective bargaining with the bargaining agent for a bargaining unit composed of Secretariat employees, the executive director must have the Secretariat’s negotiating mandate approved by the President of the Treasury Board.

Marginal note:Technical assistance

 The executive director may engage the services of persons having technical or specialized knowledge to advise and assist the Review Agency in the exercise of its powers and the performance of its duties and functions and, with the approval of the Treasury Board, may fix and pay their remuneration and expenses.

Security and Confidentiality

Marginal note:Oath or solemn affirmation

 Each member of the Review Agency must take the following oath or make the following solemn affirmation:

I, blank line, swear (solemnly affirm) that I will, to the best of my ability, discharge my responsibilities as a member of the National Security and Intelligence Review Agency and will not communicate or use without due authority any information obtained in confidence by me in that capacity.

Marginal note:Compliance with security requirements

 Each member of the Review Agency, the executive director, each employee of the Secretariat and any person whose services the Secretariat engages under section 48 must

  • (a) maintain the security clearance required by the Government of Canada; and

  • (b) follow established procedures or practices, including any requirement found in a Treasury Board policy, guideline or directive, for the secure handling, storage, transportation and transmission of information or documents.

Marginal note:Disclosure prohibited

 A member or former member of the Review Agency, the executive director or a former executive director of the Secretariat or a person who is or was engaged by the Secretariat may disclose information that they obtained, or to which they had access, in the course of exercising their powers or performing their duties and functions under this Act only for the purpose of exercising their powers or performing their duties and functions under this Act or as required by any other law.

Marginal note:Protection of confidential information

  •  (1) The Review Agency must consult with the deputy heads concerned in preparing any of the following, in order to ensure that they do not contain information the disclosure of which would be injurious to national security, national defence or international relations or is information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege:

  • Marginal note:Additional consultation

    (2) In addition to the consultation set out in subsection (1) and for the same purpose, the Review Agency must consult with the Director

    • (a) in preparing a statement under section 22 of this Act, subsection 45(6) of the Canadian Human Rights Act or subsection 19(5) of the Citizenship Act;

    • (b) in preparing a report under subsection 29(3) of this Act, subsection 46(1) of the Canadian Human Rights Act or subsection 19(6) of the Citizenship Act; or

    • (c) if the Agency considers it appropriate, in preparing any other report referred to in paragraph (1)(b).

Marginal note:Independence of peace officer

 The Review Agency must, if appropriate, consult with the department concerned in preparing any report referred to in sections 32 to 34 and 38 to 40 to ensure that the report does not contain information relating to the alleged contravention of any law of Canada or a province that, if it were to be disclosed to any Minister, may be seen to jeopardize the independence of a peace officer having jurisdiction to investigate the alleged contravention.

General

Marginal note:Powers not limited

 Nothing in this Act is to be construed as limiting the power of any body or person that is authorized under an Act of Parliament to conduct a review or investigation in relation to any activity of a department.

Governor in Council Powers

Marginal note:Designations

 The Governor in council may, by order, designate

  • (a) a federal Minister as the Minister responsible for this Act;

  • (b) any person to act as deputy head of a portion of the federal public administration for the purposes of paragraph (e) of the definition deputy head in section 2; and

  • (c) a commissioner appointed under the Inquiries Act to act as deputy head of an inquiry for the purposes of paragraph (f) of the definition deputy head in section 2.

RELATED PROVISIONS

  • — 2019, c. 13, s. 3

    • Definitions

      3 The following definitions apply in sections 4 to 17.

      former Commissioner

      former Commissioner means the Commissioner of the Communications Security Establishment appointed under subsection 273.63(1) of the National Defence Act, as it read immediately before the coming into force of section 68. (ancien commissaire)

      former Committee

      former Committee means the Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act, as it read immediately before the coming into force of section 2. (ancien comité)

      new Agency

      new Agency means the National Security and Intelligence Review Agency. (nouvel office)

  • — 2019, c. 13, s. 4

    • Chairman of former Committee
      • 4 (1) The person who, immediately before the day on which section 2 comes into force, held office as Chairman of the former Committee ceases to be Chairman and is continued in office as a member of the new Agency for the remainder of the term for which he or she was appointed.

      • Members of former Committee

        (2) The members of the former Committee who, immediately before the day on which section 2 comes into force, held office are continued in office as members of the new Agency for the remainder of the term for which they were appointed.

      • Chair of new Agency

        (3) As soon as feasible after the day on which section 2 comes into force, the Governor in Council must designate, under subsection 4(5) of the National Security and Intelligence Review Agency Act, the Chair of the new Agency from among the members who continue in office under subsection (1) or (2) or who are appointed under subsection 4(1) of that Act.

  • — 2019, c. 13, s. 5

    • Employment continued — staff
      • 5 (1) Nothing in this Part is to be construed as affecting the status of any person who, immediately before the day on which section 2 comes into force, occupies a position in the former Committee, except that the person is to, as of that day, occupy their position in the Secretariat of the new Agency.

      • Managerial or confidential position

        (2) For greater certainty, a person’s status includes whether or not they occupy a managerial or confidential position.

  • — 2019, c. 13, s. 6

    • Powers, duties and functions

      6 A person referred to in section 5 whom the former Committee has authorized to exercise certain powers or perform certain duties or functions relating to a matter before that former Committee, on the day on which section 2 comes into force, retains the authority to exercise those powers and perform those duties and functions.

  • — 2019, c. 13, s. 7

    • Appropriations

      7 Any money that is appropriated by an Act of Parliament, for the fiscal year in which section 2 comes into force, to defray any expenditure of the former Committee and that, on the day on which section 2 comes into force, is unexpended is deemed, on that day, to be an amount appropriated to defray any expenditure of the new Agency.

  • — 2019, c. 13, s. 8

    • Rights and obligations

      8 All rights and property of the former Committee and of Her Majesty in right of Canada that are under the administration and control of the former Committee and all obligations of the former Committee are transferred to the new Agency.

  • — 2019, c. 13, s. 9

    • Contracts

      9 A contract respecting the provision of services or materiel to the former Committee entered into before the day on which section 2 comes into force is deemed to have been entered into by the executive director of the Secretariat of the new Agency.

  • — 2019, c. 13, s. 10

    • Information — former Committee

      10 The former Committee must transfer to the new Agency all information under its control, including information that relates to a complaint before that former Committee, or to any review or investigation that is being undertaken by that Committee, immediately before the day on which section 2 comes into force.

  • — 2019, c. 13, s. 11

    • Complaints — former Committee
      • 11 (1) The new Agency becomes seized of any complaint made to the former Committee before the day on which section 2 comes into force and that complaint is deemed to have been made to the new Agency.

      • Reports and matters

        (2) The new Agency becomes seized of any report made under section 19 of the Citizenship Act, and any matter referred under section 45 of the Canadian Human Rights Act, to the former Committee before the day on which section 2 comes into force and that report or matter is deemed to have been made or referred, as the case may be, to the new Agency.

  • — 2019, c. 13, s. 12

    • First report
      • 12 (1) The first report that the new Agency submits under each of subsections 32(1) and 38(1) of the National Security and Intelligence Review Agency Act must include information in respect of any period for which the former Committee has not yet submitted a report under section 53 of the Canadian Security Intelligence Service Act, as it read immediately before the coming into force of section 2.

      • First report — Communications Security Establishment

        (2) The first report that the new Agency submits under each of subsections 33(1) and 38(1) of the National Security and Intelligence Review Agency Act must include information in respect of any period for which the former Commissioner has not yet submitted a report under subsection 273.63(3) of the National Defence Act, as it read immediately before the coming into force of section 2.

  • — 2019, c. 13, s. 13

    • Commencement of proceedings
      • 13 (1) Any action, suit or other legal or administrative proceeding that could have been brought against the former Committee may be brought against the new Agency in any court that would have had jurisdiction if the action, suit or proceeding had been brought against the former Committee.

      • Pending proceedings

        (2) Any action, suit or other legal or administrative proceeding to which the former Committee is a party that is pending immediately before the day on which section 2 comes into force may be continued by or against the new Agency in the same manner and to the same extent as it could have been continued by or against the former Committee.

  • — 2019, c. 13, s. 14

    • No compensation

      14 Despite the provisions of any contract, agreement or order, no person appointed to hold office as Chairman or as a member of the former Committee has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent or mandatary of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Part.

  • — 2019, c. 13, s. 15

    • Information — former Commissioner

      15 The former Commissioner must transfer to the new Agency all information under his or her control, including information that relates to a complaint before that former Commissioner, or to any review or investigation that is being undertaken by that former Commissioner, immediately before the day on which section 2 comes into force.

  • — 2019, c. 13, s. 16

    • Complaints — former Commissioner

      16 The new Agency becomes seized of any complaint made to the former Commissioner before the day on which section 2 comes into force and that complaint is deemed to have been made to the new Agency.

  • — 2019, c. 13, s. 17

    • Commencement of proceedings
      • 17 (1) Any action, suit or other legal or administrative proceeding, relating to a review or an investigation, that could have been brought against the former Commissioner may be brought against the new Agency in any court that would have had jurisdiction if the action, suit or proceeding had been brought against the former Commissioner.

      • Pending proceedings

        (2) Any action, suit or other legal or administrative proceeding to which the former Commissioner is a party that relates to a review or an investigation and that is pending immediately before the day on which section 2 comes into force may be continued by or against the new Agency in the same manner and to the same extent as it could have been continued by or against the former Commissioner.

  • — 2019, c. 13, par. 82(1)(f), ss. (2)

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