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

Short Title

Marginal note:Short title

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

Definitions

Marginal note:Definitions

2 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

3 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

• 4 (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 Leader of the Government in the Senate or Government Representative in the Senate and the Leader of the Opposition in the Senate;

  • (b) the Leader or Facilitator of every recognized party or parliamentary 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

• 5 (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

• 6 (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

7 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

7.1 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

• 8 (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

    • (i) any complaint made under subsection 16(1), 17(1) or 18(3),

    • (ii) any complaint referred to the Agency under subsection 45.53(4.1) or 45.67(2.1) of the Royal Canadian Mounted Police Act,

    • (iii) reports made to the Agency under section 19 of the Citizenship Act, and

    • (iv) matters referred to the Agency under section 45 of the Canadian Human Rights Act.

• 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

• 9 (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

10 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

• 11 (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

12 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

13 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.