Communications Security Establishment Act (S.C. 2019, c. 13, s. 76)

Marginal note:Content of authorizations

35 An authorization issued under subsection 26(1), 27(1) or (2), 29(1) or 30(1) must specify

• (a) the activities or classes of activities that it authorizes the Establishment to carry out;

• (b) the activities or classes of activities referred to in paragraph (a) that would otherwise be contrary to any other Act of Parliament;

• (c) the persons or classes of persons who are authorized to carry out the activities or classes of activities referred to in paragraph (a);

• (d) any terms, conditions or restrictions that the Minister considers advisable in the public interest, or advisable to ensure the reasonableness and proportionality of any activity authorized by the authorization;

• (e) in the case of an authorization issued under subsection 26(1) or 27(1) or (2), any other terms, conditions or restrictions that the Minister considers advisable to protect the privacy of Canadians and of persons in Canada, including conditions to limit the use, analysis and retention of, access to, and the form and manner of disclosure of, information related to them;

• (f) in the case of an authorization issued under subsection 26(1), whether the activities authorized include acquiring unselected information, and any terms, conditions or restrictions that the Minister considers advisable to limit the use, analysis and retention of, and access to, unselected information;

• (g) the day on which the authorization is issued;

• (h) the day on which the authorization expires; and

• (i) anything else reasonable in the circumstances and reasonably necessary in aid of any other activity, or class of activities, authorized by the authorization.

Marginal note:Period of validity of authorizations

• 36 (1) An authorization issued under subsection 26(1), 27(1) or (2), 29(1) or 30(1) may be valid for a period not exceeding one year.

• Marginal note:Extension — foreign intelligence or cybersecurity

  (2) The Minister may extend the period of validity of an authorization issued under subsection 26(1) or 27(1) or (2) by up to a period not exceeding one year from the day referred to in paragraph 35(h).

• Marginal note:No review by Commissioner

  (3) The Minister’s decision to extend a period of validity is not subject to review by the Commissioner under the Intelligence Commissioner Act.

• Marginal note:Extension — authorization

  (4) The Minister must, as soon as feasible, notify the Commissioner of any extension of an authorization.

Repeal and Amendment

Marginal note:Significant change — Minister to be notified

• 37 (1) If there is a significant change in any fact that was set out in the application for an authorization issued under subsection 26(1), 27(1) or (2), 29(1) or 30(1), the Chief must notify the Minister of the change as soon as feasible.

• Marginal note:Commissioner notified

  (2) If the Minister concludes that the change in the fact is significant and the authorization was issued under subsection 26(1) or 27(1) or (2), the Minister must notify the Commissioner of his or her conclusion.

• Marginal note:Review Agency notified

  (3) If the Minister concludes that the change in the fact is significant and the authorization was issued under subsection 29(1) or 30(1), the Minister must notify the Review Agency of his or her conclusion.

Marginal note:Repeal of authorization

38 The Minister may repeal an authorization issued under subsection 26(1), 27(1) or (2), 29(1) or 30(1) at any time.

Marginal note:Amendment

• 39 (1) The Minister may amend an authorization issued under subsection 26(1), 27(1) or (2), 29(1) or 30(1) if the Minister concludes that there has been a significant change in any fact that was set out in the application for the authorization.

• Marginal note:Conditions for amendment

  (2) The Minister may amend an authorization only if he or she concludes that there are reasonable grounds to believe that, taking into account the significant change,

  • (a) the conditions referred to in subsections 34(1) and (2) are met, in the case of an authorization issued under subsection 26(1);

  • (b) the conditions referred to in subsections 34(1) and (3) are met, in the case of an authorization issued under subsection 27(1) or (2); or

  • (c) the conditions referred to in subsections 34(1) and (4) are met, in the case of an authorization issued under subsection 29(1) or 30(1).

• Marginal note:Amendment takes effect on approval — foreign intelligence and cybersecurity

  (3) An amended authorization issued under subsection 26(1) or 27(1) or (2) continues to be valid in its unamended form until — if the amendment is approved by the Commissioner under paragraph 20(1)(a) of the Intelligence Commissioner Act — the Commissioner provides the Minister with the written decision approving the amendment.

• Marginal note:Activities under amended authorization — foreign intelligence and cybersecurity

  (4) For greater certainty, an activity that is specified in an amended authorization issued under subsection 26(1) or 27(1) or (2) in respect of which the Commissioner has provided the Minister with the written decision approving the amendment is authorized only to the extent that it is carried out in accordance with the authorization as amended.

• Marginal note:Activities under amended authorization — cyber operations

  (5) For greater certainty, an activity that is specified in an amended authorization issued under subsection 29(1) or 30(1) is authorized only to the extent that it is carried out in accordance with the authorization as amended.

Emergency Authorizations

Marginal note:Emergency Authorizations

• 40 (1) If the Minister concludes that there are reasonable grounds to believe that the conditions referred to in subsections 34(1) and (2) or 34(1) and (3) are met but that the time required to obtain the Commissioner’s approval would defeat the purpose of issuing an authorization under subsection 26(1) or 27(1) or (2), as the case may be, the Minister may issue a Foreign Intelligence Authorization that authorizes the Establishment to carry out any activity referred to in section 26, or a Cybersecurity Authorization that authorizes the Establishment to carry out any activity referred to in subsection 27(1) or (2).

• Marginal note:No review by Commissioner

  (2) The Minister’s decision to issue the authorization is not subject to review by the Commissioner under the Intelligence Commissioner Act.

• Marginal note:Applications for authorizations

  (3) Subsections 33(1) to (3) apply to an application for an authorization issued under subsection (1), except that

  • (a) the application may be made orally; and

  • (b) the application must set out the facts that would allow the Minister to conclude that there are reasonable grounds to believe that the time required to obtain the Commissioner’s approval would defeat the purpose of issuing an authorization under subsection 26(1) or 27(1) or (2).

• Marginal note:Written request of infrastructure owner or operator

  (4) For greater certainty, even if an application is made orally for an authorization that authorizes the Establishment to carry out any activity referred to in subsection 27(2), the request of the owner or operator of the information infrastructure to the Establishment to carry out the activity must be in writing.

Marginal note:Commissioner and Review Agency notified

41 The Minister must notify the Commissioner and the Review Agency of any authorization issued under subsection 40(1) as soon as feasible after issuing it.

Marginal note:Period of validity of authorizations

42 An authorization issued under subsection 40(1) may be valid for a period not exceeding five days.

Disclosure of Information

Marginal note:Canadian identifying information

43 The Establishment may disclose, to persons or classes of persons designated under section 45, information that could be used to identify a Canadian or a person in Canada and that has been used, analysed or retained under an authorization issued under subsection 26(1) or 40(1), if the Establishment concludes that the disclosure is essential to international affairs, defence, security or cybersecurity.

Marginal note:Cybersecurity and information assurance

• 44 (1) The Establishment may disclose, to persons or classes of persons designated under section 45, information relating to a Canadian or a person in Canada that has been acquired, used or analysed in the course of activities carried out under the cybersecurity and information assurance aspect of its mandate, if the Establishment concludes that the disclosure is necessary to help protect

  • (a) federal institutions’ electronic information and information infrastructures; or

  • (b) electronic information and information infrastructures designated under subsection 21(1) as being of importance to the Government of Canada.

• Marginal note:Private communications

  (2) Information disclosed under subsection (1) may include an intercepted private communication as well as the existence of an intercepted private communication.

• Marginal note:Definition of private communication

  (3) In subsection (2), private communication has the same meaning as in section 183 of the Criminal Code.

Marginal note:Designated persons or classes of persons

45 The Minister may, by order, designate persons and classes of persons for the purposes of section 43 and subsection 44(1).

Marginal note:Urgent circumstances

• 46 (1) The Establishment may use and analyse information relating to a Canadian or a person in Canada if it has reasonable grounds to believe that there is an imminent danger of death or serious bodily harm to any individual and that the information will be relevant to the imminent danger.

• Marginal note:Urgent circumstances — disclosure

  (2) The Establishment may disclose the information to any appropriate person if its disclosure may help prevent the death or serious bodily harm.

• Marginal note:Minister and Review Agency notified

  (3) If the Establishment uses or analyses information under subsection (1), or discloses information under subsection (2), the Chief must notify the Minister in writing as soon as feasible, and the Minister must notify the Review Agency.

General Rules About Authorizations

Marginal note:Power exercised personally

47 The Minister must personally exercise the powers that are set out in subsections 26(1), 27(1) and (2), 29(1), 30(1), 36(2), 39(1) and 40(1).

Marginal note:Authorizations provided to Commissioner

• 48 (1) The Minister must provide a copy of each authorization issued under subsection 26(1) or 27(1) or (2), or amended under subsection 39(1), to the Commissioner after issuing it or amending it, as the case may be, for the purposes of the Commissioner’s review and approval under the Intelligence Commissioner Act.

• Marginal note:Notice of authorization or amendment

  (2) The copy of the authorization constitutes notice of the authorization or amendment for the purposes of the calculation of the time limit referred to in paragraph 20(3)(b) of that Act.

Marginal note:No civil or criminal liability

49 No person who acts in accordance with an authorization issued under subsection 26(1), 27(1) or (2), 29(1), 30(1) or 40(1) or who aids, in good faith, a person who they believe on reasonable grounds is acting in accordance with such an authorization incurs any criminal or civil liability for anything reasonably done further to the authorization.

Marginal note:Exclusion of Part VI of Criminal Code

50 Part VI of the Criminal Code does not apply in relation to an interception of a communication under the authority of an authorization issued under subsection 26(1), 27(1) or (2), 29(1), 30(1) or 40(1) or in relation to a communication so intercepted.

Marginal note:Crown Liability and Proceedings Act

51 No action lies under section 18 of the Crown Liability and Proceedings Act in respect of

• (a) the use or disclosure under this Act of any communication intercepted under the authority of an authorization issued under subsection 26(1), 27(1) or (2), 29(1), 30(1) or 40(1); or

• (b) the disclosure under this Act of the existence of such a communication.

Marginal note:Report

• 52 (1) Within 90 days after the last day of the period of validity of an authorization issued under subsection 26(1), 27(1) or (2), 29(1), 30(1) or 40(1), the Chief must provide a written report to the Minister on the outcome of the activities carried out under the authorization.

• Marginal note:Copy of report to Commissioner and Review Agency

  (2) The Minister must provide the Commissioner and the Review Agency with a copy of a report on the outcome of the activities carried out under an authorization issued under subsection 26(1), 27(1) or (2) or 40(1).

• Marginal note:Copy of report to Review Agency

  (3) The Minister must provide the Review Agency with a copy of a report on the outcome of the activities carried out under an authorization issued under subsection 29(1) or 30(1).

Marginal note:Statutory Instruments Act

53 Authorizations issued under subsection 26(1), 27(1) or (2), 29(1), 30(1) or 40(1) and orders made under section 45 are not statutory instruments within the meaning of the Statutory Instruments Act.

Arrangements

Marginal note:Arrangements

• 54 (1) The Establishment may enter into arrangements with entities that have powers and duties similar to the Establishment’s — including entities that are institutions of foreign states or that are international organizations of states or institutions of those organizations — for the purposes of the furtherance of its mandate, including for the purposes of sharing information with them or otherwise cooperating with them.

• Marginal note:Approval of Minister after consultation

  (2) However, the Establishment may enter into an arrangement with institutions of foreign states, international organizations of states or institutions of those organizations only with the Minister’s approval, after the Minister has consulted the Minister of Foreign Affairs.

General

Marginal note:Prohibition on disclosure

• 55 (1) It is prohibited, in a proceeding before a court, person or body with jurisdiction to compel the production of information, to disclose the identity of a person or entity that has assisted or is assisting the Establishment on a confidential basis, or any information from which the identity of such a person or entity could be inferred.

• Marginal note:Exceptions

  (2) Subsection (1) does not apply when

  • (a) the information or identity is disclosed by the person or entity to their solicitor or, in Quebec, advocate in connection with a proceeding, if the information is relevant to that proceeding;

  • (b) the information or identity is disclosed to enable the Attorney General of Canada, a judge or a court hearing an appeal from, or a review of, an order of the judge to discharge their responsibilities under this section; or

  • (c) the information or identity is disclosed to the Commissioner or to the Review Agency.

• Marginal note:Exception — consent

  (3) The identity of a person or entity that has assisted or is assisting the Establishment on a confidential basis, or any information from which the identity of such a person or entity could be inferred, may be disclosed in a proceeding referred to in subsection (1) if the person or entity and the Chief consent to the disclosure.

• Marginal note:Application of other Acts

  (4) Sections 38 to 38.16 of the Canada Evidence Act, or sections 83 and 87 of the Immigration and Refugee Protection Act, as the case may be, apply to a proceeding referred to in subsection (1), with any necessary modifications.

• Marginal note:Confidentiality — information

  (5) The judge must ensure the confidentiality of the following:

  • (a) the identity of any person or entity that has assisted or is assisting the Establishment on a confidential basis, and any information from which the identity of such a person or entity could be inferred; and

  • (b) information and other evidence provided in respect of an application under any provision referred to in subsection (4) if, in the judge’s opinion, its disclosure would be injurious to international relations, national defence or national security or would endanger the safety of any person.

• Marginal note:Confidentiality — application

  (6) If, in the judge’s opinion, the disclosure of the fact that an application under any provision referred to in subsection (4) would result in the disclosure of an identity or information referred to in paragraph (5)(a), the judge must ensure the confidentiality of the application and all information related to it.

• Marginal note:Order authorizing disclosure

  (7) The judge may, by order, authorize disclosure that the judge considers appropriate, subject to any conditions that the judge specifies, of the identity or information referred to in subsection (1) if, in the judge’s opinion,

  • (a) the person or entity is not a person or entity that has assisted or is assisting the Establishment on a confidential basis, or the information is not information from which the identity of such a person or entity could be inferred; or

  • (b) in the case of a proceeding that is a prosecution of an offence, the disclosure of the identity of a person or entity that has assisted or is assisting the Establishment on a confidential basis, or information from which the identity of such a person or entity could be inferred, is essential to establish the accused’s innocence and may be disclosed in the proceeding.

• Marginal note:Order confirming prohibition

  (8) If the judge does not authorize disclosure under paragraph (7)(a) or (b), the judge must, by order, confirm the prohibition of disclosure.

• Marginal note:When determination takes effect

  (9) An order of the judge that authorizes disclosure does not take effect until the time provided or granted to appeal the order has expired or, if the order is appealed, the time provided or granted to appeal a judgment of an appeal court that confirms the order has expired and no further appeal from a judgment that confirms the order is available.

• Marginal note:Confidentiality on appeal

  (10) In the case of an appeal, subsections (5) and (6) apply, with any necessary modifications, to the court to which the appeal is taken.

• Marginal note:Definition of judge

  (11) In this section, judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice to conduct hearings under any Act of Parliament for the protection of information.