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 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. (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 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

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

Marginal note:Provision of information to Review Agency

• 14 (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), the 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:Provision of information to review body

• 15 (1) The Review Agency may provide to the review body 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 the 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.

Coordination

Marginal note:Coordination with Privacy Commissioner

• 15.1 (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

• 16 (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

• 17 (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 Federal Public Sector Labour Relations Act.

Marginal note:Denial of security clearance

• 18 (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

19 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

20 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

21 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

22 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

• 23 (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

24 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

• 25 (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

26 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

27 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

27.1 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

28 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

• 29 (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

30 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

• 31 (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

• 32 (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

• 33 (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

34 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

• 35 (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

36 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

• 37 (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

• 38 (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

• 39 (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

• 40 (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

• 41 (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

• 42 (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

43 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

• 44 (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

• 45 (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

46 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

47 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

48 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

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

I, , 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

50 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

51 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

• 52 (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:

  • (a) 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; or

  • (b) a report under subsection 29(2) or (3) or any of sections 38 to 40 of this Act, subsection 46(1) of the Canadian Human Rights Act or subsection 19(6) of the Citizenship Act.

• 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

53 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

54 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

55 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.

Short Title

Marginal note:Short title

1 This Act may be cited as the Avoiding Complicity in Mistreatment by Foreign Entities 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 a department named in Schedule I to the Financial Administration Act, a division or branch of the federal public administration 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

• (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 the Canada Border Services Agency, the President;

• (f) with respect to the Communications Security Establishment, the Chief; and

• (g) 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. (administrateur général)

mistreatment

mistreatment means torture or other cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984. (mauvais traitements)

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;

• (b) the Commissioner of the Communications Security Establishment appointed under subsection 273.63(1) of the National Defence Act; or

• (c) the Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act. (organisme de surveillance)

Directions

Marginal note:Authority to issue

• 3 (1) The Governor in Council may, on the recommendation of the appropriate Minister, issue written directions to any deputy head in respect of

  • (a) the disclosure of information to any foreign entity that would result in a substantial risk of mistreatment of an individual;

  • (b) the making of requests to any foreign entity for information that would result in a substantial risk of mistreatment of an individual; and

  • (c) the use of information that is likely to have been obtained through the mistreatment of an individual by a foreign entity.

• Marginal note:Obligation to issue

  (2) The Governor in Council must issue written directions in respect of the matters referred to in subsection (1) to the following deputy heads:

  • (a) the Chief of the Defence Staff;

  • (b) the Deputy Minister of National Defence;

  • (c) the Deputy Minister of Foreign Affairs;

  • (d) the Commissioner of the Royal Canadian Mounted Police;

  • (e) the Director of the Canadian Security Intelligence Service;

  • (f) the President of the Canada Border Services Agency; and

  • (g) the Chief of the Communications Security Establishment.

• Marginal note:Directions not statutory instruments

  (3) Directions are not statutory instruments within the meaning of the Statutory Instruments Act.

Marginal note:Amendments to schedule

4 The Governor in Council may, by order, amend the schedule to add a reference to each deputy head to whom directions have been issued under section 3 or to delete any such reference if the directions that were issued to the deputy head have been repealed or if the deputy head’s position has ceased to exist or has changed name.

Deputy Heads

Marginal note:Directions to be made available to public

5 Every deputy head to whom directions have been issued under section 3 must, as soon as feasible after receiving them, make them available to the public.

Marginal note:Copy to be provided

6 Every deputy head to whom directions have been issued under section 3 must, as soon as feasible after receiving them, provide a copy of the directions to the National Security and Intelligence Committee of Parliamentarians and, if applicable, to the relevant review body.

Marginal note:Report

• 7 (1) Every deputy head to whom directions have been issued under section 3 must, before March 1 of each year, submit to the appropriate Minister a report in respect of the implementation of those directions during the previous calendar year.

• Marginal note:Version available to the public

  (2) Every deputy head must, as soon as feasible after submitting a report under subsection (1), make a version of it available to the public that does not contain information

  • (a) the disclosure of which would be injurious to national security, national defence or international relations or compromise an ongoing operation or investigation; or

  • (b) that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

Appropriate Ministers

Marginal note:Obligation to provide copy

• 8 (1) As soon as feasible after receiving a report under section 7, the appropriate Minister must provide a copy of it to the National Security and Intelligence Committee of Parliamentarians and, if applicable, to the relevant review body.

• Marginal note:Restriction

  (2) The copy must not contain any information that the Committee or the relevant review body is not entitled to receive.

Short Title

Marginal note:Short title

1 This Act may be cited as the Intelligence Commissioner Act.

Definition

Marginal note:Definition

2 In this Act, Commissioner means the Intelligence Commissioner appointed under subsection 4(1).

Designation of Minister

Marginal note:Order in council

3 The Governor in Council may, by order, designate a federal minister as the Minister responsible for this Act.

Commissioner

Marginal note:Appointment

• 4 (1) The Governor in Council, on the recommendation of the Prime Minister, is to appoint a retired judge of a superior court as the Intelligence Commissioner, to hold office during good behaviour for a term of not more than five years.

• Marginal note:Reappointment

  (2) A person appointed to be Commissioner is eligible to be reappointed for one additional term of not more than five years.

• Marginal note:Part-time

  (3) The Commissioner is to perform his or her duties and functions on a part-time basis.

• Marginal note:Remuneration

  (4) The Commissioner is to be paid the remuneration that may be fixed by the Governor in Council.

• Marginal note:Travel and living expenses

  (5) The Commissioner is entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred in the exercise of his or her powers and the performance of his or her duties and functions under this or any other Act of Parliament, while absent from his or her ordinary place of residence.

• Marginal note:Deemed employment

  (6) The Commissioner 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.

• Marginal note:Acting Commissioner

  (7) In the event of the Commissioner’s absence or incapacity, or if that office is vacant, the Governor in Council is to appoint a retired judge of a superior court to act as Commissioner and, while acting as Commissioner, that person has all the Commissioner’s powers, duties and functions under this or any other Act of Parliament.

Marginal note:Rank of deputy head

5 The Commissioner has the rank and all the powers of a deputy head of a department and has control and management of his or her office and all matters connected with it.

Marginal note:Personnel

• 6 (1) The Commissioner has exclusive authority to

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

  • (b) establish standards, procedures and processes governing staffing, including governing the appointment of employees, 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 Commissioner’s right or authority 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 Commissioner and to his or her employees. For the purposes of that Part, the Commissioner is deemed to be a deputy head, and his or her employees are deemed to be employees, as those terms are defined in subsection 2(1) of that Act.

Marginal note:Powers of Commissioner

7 In the exercise of his or her authority under subsection 6(1), the Commissioner may

• (a) determine his or her human resources requirements and provide for the allocation and effective utilization of human resources;

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

• (c) after consultation with the President of the Treasury Board, determine and regulate the pay to which employees are entitled for services rendered, the hours of work and leave of the 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 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 employees’ learning, training and development requirements 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 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, 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 Commissioner considers necessary for effective human resources management.

Marginal note:Negotiation of collective agreements

8 Before entering into collective bargaining with the bargaining agent for a bargaining unit composed of his or her employees, the Commissioner must have his or her negotiating mandate approved by the President of the Treasury Board.

Marginal note:Technical assistance

9 The Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge to advise and assist the Commissioner in the exercise of his or her powers and the performance of his or her duties and functions under this or any other Act of Parliament and, with the approval of Treasury Board, may fix and pay the remuneration and expenses of those persons.

Marginal note:Oath or solemn affirmation

• 10 (1) The Commissioner must, before commencing the duties and functions of office, take the following oath or make the following solemn affirmation:

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

• Marginal note:Security clearance

  (2) Every employee of the Commissioner and every person whose services are engaged under section 9 must maintain the security clearance required by the Government of Canada.

• Marginal note:Security requirements

  (3) The Commissioner and every person referred to in subsection (2) must 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 limited

11 The Commissioner, a former Commissioner, any current or former employee and any person whose services are or were engaged under section 9 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 or any other Act of Parliament only for the purpose of exercising those powers or performing those duties and functions or as required by any other law.

Duties and Functions

Marginal note:Review and approval

12 The Commissioner is responsible, as set out in sections 13 to 20, for

• (a) reviewing the conclusions on the basis of which certain authorizations are issued or amended, and certain determinations are made, under the Communications Security Establishment Act and the Canadian Security Intelligence Service Act; and

• (b) if those conclusions are reasonable, approving those authorizations, amendments and determinations.

Marginal note:Foreign Intelligence Authorization

13 The Commissioner must review whether the conclusions — made under subsections 34(1) and (2) of the Communications Security Establishment Act and on the basis of which a Foreign Intelligence Authorization was issued under subsection 26(1) of that Act — are reasonable.

Marginal note:Cybersecurity Authorization

14 The Commissioner must review whether the conclusions — made under subsections 34(1) and (3) of the Communications Security Establishment Act and on the basis of which a Cybersecurity Authorization was issued under subsection 27(1) or (2) of that Act — are reasonable.

Marginal note:Amended Authorization

15 The Commissioner must review whether the conclusions — made under paragraph 39(2)(a) of the Communications Security Establishment Act and on the basis of which an authorization referred to in section 13 is amended, or made under paragraph 39(2)(b) of that Act and on the basis of which an authorization referred to in section 14 is amended — are reasonable.

Marginal note:Classes of Canadian datasets

16 The Commissioner must review whether the conclusions — made under subsection 11.03(2) of the Canadian Security Intelligence Service Act and on the basis of which a class of Canadian datasets is determined under subsection 11.03(1) of that Act — are reasonable.

Marginal note:Retention of foreign datasets

17 The Commissioner must review whether the conclusions — made under subsection 11.17(1) of the Canadian Security Intelligence Service Act and on the basis of which the retention of a foreign dataset was authorized — are reasonable.

Marginal note:Query of dataset in exigent circumstances

18 The Commissioner must review whether the conclusions — made under subsection 11.22(1) of the Canadian Security Intelligence Service Act and on the basis of which a query of a dataset in exigent circumstances was authorized — are reasonable.

Marginal note:Classes of acts or omissions

19 The Commissioner must review whether the conclusions — made under subsection 20.1(3) of the Canadian Security Intelligence Service Act and on the basis of which a class of acts or omissions is determined — are reasonable.

Marginal note:Commissioner’s decision

• 20 (1) After conducting a review under any of sections 13 to 16, 18 and 19, the Commissioner, in a written decision,

  • (a) must approve the authorization, amendment or determination if he or she is satisfied that the conclusions at issue are reasonable, and must set out his or her reasons for doing so; or

  • (b) must not approve the authorization, amendment or determination if he or she is not so satisfied, and must set out his or her reasons for doing so.

• Marginal note:Foreign datasets

  (2) After conducting a review under section 17, the Commissioner, in a written decision,

  • (a) must approve the authorization if he or she is satisfied that the conclusions at issue are reasonable, and must set out his or her reasons for doing so;

  • (b) must approve the authorization with conditions — respecting the querying or exploitation of the foreign dataset or the retention or destruction of the dataset or of a portion of it — and provide reasons for doing so, if he or she is satisfied that those conclusions are reasonable once the conditions are attached; or

  • (c) must not approve the authorization in any other case and must set out his or her reasons for doing so.

• Marginal note:Time limit

  (3) The Commissioner must provide the decision to the person whose conclusions are being reviewed

  • (a) as soon as feasible, in the case of an authorization referred to in section 18; or

  • (b) within 30 days after the day on which the Commissioner receives notice of the authorization, amendment or determination, or within any other period that may be agreed on by the Commissioner and the person, in any other case.

• Marginal note:For greater certainty

  (4) For greater certainty, a decision of the Commissioner is not a statutory instrument within the meaning of the Statutory Instruments Act.

Marginal note:Decision provided to Review Agency

21 The Commissioner must provide a copy of every decision made by him or her under section 20 to the National Security and Intelligence Review Agency for the purpose of assisting that Agency in fulfilling its mandate under paragraphs 8(1)(a) to (c) of the National Security and Intelligence Review Agency Act.

Public Report

Marginal note:Report to Prime Minister

• 22 (1) The Commissioner must, each calendar year, submit to the Prime Minister a report with respect to the Commissioner’s activities during the previous calendar year. The report must include statistics, that the Commissioner considers appropriate, relating to the authorizations, amendments and determinations that were approved and not approved.

• Marginal note:Protection of confidential information

  (2) The Commissioner must consult with the Director of the Canadian Security Intelligence Service and the Chief of the Communications Security Establishment in preparing the report in order to ensure that it does not contain information the disclosure of which would be injurious to national security, national defence or international relations or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

• Marginal note:Tabling

  (3) 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.

Information

Marginal note:Provision of information to Commissioner

• 23 (1) Despite any other Act of Parliament and subject to section 26, the person whose conclusions are being reviewed by the Commissioner under any of sections 13 to 19 must, for the purposes of the Commissioner’s review, provide the Commissioner with all information that was before the person in issuing or amending the authorization or making the determination at issue, including 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:No waiver

  (2) For greater certainty, the disclosure to the Commissioner 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:Entitlement to reports

24 The Commissioner is entitled to receive a copy of a report, or part of one, submitted by the National Security and Intelligence Review Agency under subsection 32(1) or 33(1) or section 34 or 35 of the National Security and Intelligence Review Agency Act, if the report or part relates to the Commissioner’s powers, duties or functions.

Marginal note:Disclosure of information to Commissioner

25 Despite any other Act of Parliament and any privilege under the law of evidence and subject to section 26, the following persons or bodies may — for the purpose of assisting the Commissioner in the exercise of his or her powers and the performance of his or her duties and functions — disclose to the Commissioner any information that is not directly related to a specific review under any of sections 13 to 19:

• (a) the Minister of Public Safety and Emergency Preparedness;

• (b) the Minister, as defined in section 2 of the Communications Security Establishment Act;

• (c) the Canadian Security Intelligence Service; and

• (d) the Communications Security Establishment.

Marginal note:No entitlement

26 The Commissioner is not entitled to have access to information that is 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.

Short Title

Marginal note:Short title

1 This Act may be cited as the Communications Security Establishment Act.

Interpretation

Marginal note:Definitions

2 The following definitions apply in this Act.

Canadian

Canadian means a Canadian citizen, a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act or a corporation incorporated or continued under the laws of Canada or a province. (Canadien)

Chief

Chief means the Chief of the Establishment appointed under section 8. (chef)

Commissioner

Commissioner means the Intelligence Commissioner appointed under subsection 4(1) of the Intelligence Commissioner Act. (commissaire)

entity

entity means a person, group, trust, partnership or fund or an unincorporated association or organization and includes a state or a political subdivision or agency of a state. (entité)

Establishment

Establishment means the Communications Security Establishment established under section 5. (Centre)

federal institution

federal institution includes any of the following institutions of Parliament or the Government of Canada:

• (a) the Senate;

• (b) the House of Commons;

• (c) the Library of Parliament;

• (d) the office of the Senate Ethics Officer, the office of the Conflict of Interest and Ethics Commissioner and the Parliamentary Protective Service;

• (e) any federal court;

• (f) any board, commission, council, other body or other office established to perform a governmental function by or under an Act of Parliament, or by or under the authority of the Governor in Council;

• (g) a department as defined in section 2 of the Financial Administration Act;

• (h) a Crown corporation established by or under an Act of Parliament; and

• (i) any other body that is specified by an Act of Parliament to be an agent of Her Majesty in right of Canada or to be subject to the direction of the Governor in Council or a federal minister. (institutions fédérales)

foreign intelligence

foreign intelligence means information or intelligence about the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group, as they relate to international affairs, defence or security. (renseignement étranger)

global information infrastructure

global information infrastructure includes electromagnetic emissions, any equipment producing such emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, that equipment, those systems or those networks. (infrastructure mondiale de l’information)

Minister

Minister means the Minister of National Defence or, if another federal minister is designated under section 4, that minister. (ministre)

publicly available information

publicly available information means information that has been published or broadcast for public consumption, is accessible to the public on the global information infrastructure or otherwise or is available to the public on request, by subscription or by purchase. It does not include information in respect of which a Canadian or a person in Canada has a reasonable expectation of privacy. (information accessible au public)

Review Agency

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

terrorist group

terrorist group has the same meaning as in subsection 83.01(1) of the Criminal Code. (groupe terroriste)

unselected

unselected, with respect to information, means that the information is acquired, for technical or operational reasons, without the use of terms or criteria to identify information of foreign intelligence interest. (non sélectionnée)

Principle

Marginal note:Principle

3 It is in the public interest to ensure that the Establishment may effectively carry out its mandate in accordance with the rule of law and, to that end, to expressly recognize in law a justification for persons who are authorized to carry out activities under this Act to, in the course of carrying out those activities, commit acts or omissions that would otherwise constitute offences.

Designation of Minister

Marginal note:Minister

4 The Governor in Council may, by order, designate any federal minister to be the Minister referred to in this Act.

Communications Security Establishment

Establishment and Organization

Marginal note:Establishment established

5 The Communications Security Establishment is established.

Marginal note:Minister is responsible

6 The Minister is responsible for the Establishment.

Marginal note:Head office

• 7 (1) The head office of the Establishment is to be in the National Capital Region described in the schedule to the National Capital Act.

• Marginal note:Other offices

  (2) The Chief may, with the approval of the Minister, establish other offices elsewhere in Canada.

Chief of the Communications Security Establishment

Marginal note:Appointment

• 8 (1) The Governor in Council must appoint a Chief of the Communications Security Establishment to hold office during pleasure for a term not exceeding five years.

• Marginal note:Reappointment

  (2) The Chief is eligible to be reappointed at the end of a term of office for a further term not exceeding five years.

• Marginal note:Salary and expenses

  (3) The Chief is to be paid the salary that is fixed by the Governor in Council and is entitled to payments for reasonable travel and living expenses incurred in the exercise of his or her powers or the performance of his or her duties and functions while absent from his or her ordinary place of work.

• Marginal note:Compensation

  (4) The Chief 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.

• Marginal note:Absence, incapacity or vacancy

  (5) If the Chief is absent or incapacitated or the office of Chief is vacant, the Minister may appoint another person to act as Chief, but must not appoint a person for a term of more than 90 days without the approval of the Governor in Council.

Marginal note:Chief’s powers, duties and functions

• 9 (1) The Chief, under the direction of the Minister, has the management and control of the Establishment and all matters relating to it.

• Marginal note:Rank of deputy head

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

• Marginal note:Delegation by Chief

  (3) The Chief may delegate to any person any power, duty or function conferred on the Chief under this Act, except the power to delegate under this subsection.

Marginal note:Establishment’s powers, duties and functions

10 The powers, duties and functions of the Establishment may be exercised or performed by any person who is appointed to serve in the Establishment in a capacity appropriate to the exercise of the power or the performance of the duty or function.

Marginal note:Directions by Minister

• 11 (1) The Minister may issue written directions to the Chief respecting the performance of the Chief’s duties and functions.

• Marginal note:Statutory Instruments Act

  (2) Directions issued under subsection (1) are not statutory instruments within the meaning of the Statutory Instruments Act.

Human Resources

Marginal note:Personnel

• 12 (1) The Chief has exclusive authority to

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

  • (b) establish standards, procedures and processes governing staffing, including governing the appointment of employees, 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 Chief to deal with the matters referred to in subsection (1).

Marginal note:Powers of the Chief

13 In exercising his or her authority under subsection 12(1), the Chief may

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

• (b) provide for the classification of positions and of the Establishment’s employees;

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

• (d) after consultation with the President of the Treasury Board, determine and regulate the payments that may be made to the Establishment’s 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 Establishment’s 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 the Establishment’s 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 the Establishment’s 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 Chief considers necessary for effective human resources management in the Establishment.

Marginal note:Negotiation of collective agreements

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

Mandate

Marginal note:Mandate

• 15 (1) The Establishment is the national signals intelligence agency for foreign intelligence and the technical authority for cybersecurity and information assurance.

• Marginal note:Aspects of the mandate

  (2) The Establishment’s mandate has five aspects: foreign intelligence, cybersecurity and information assurance, defensive cyber operations, active cyber operations and technical and operational assistance.

Marginal note:Foreign intelligence

16 The foreign intelligence aspect of the Establishment’s mandate is to acquire, covertly or otherwise, information from or through the global information infrastructure, including by engaging or interacting with foreign entities located outside Canada or by using any other method of acquiring information, and to use, analyse and disseminate the information for the purpose of providing foreign intelligence, in accordance with the Government of Canada’s intelligence priorities.

Marginal note:Cybersecurity and information assurance

17 The cybersecurity and information assurance aspect of the Establishment’s mandate is to

• (a) provide advice, guidance and services to help protect

  • (i) federal institutions’ electronic information and information infrastructures, and

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

• (b) acquire, use and analyse information from the global information infrastructure or from other sources in order to provide such advice, guidance and services.

Marginal note:Defensive cyber operations

18 The defensive cyber operations aspect of the Establishment’s mandate is to carry out activities on or through the global information infrastructure to help protect

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

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

Marginal note:Active cyber operations

19 The active cyber operations aspect of the Establishment’s mandate is to carry out activities on or through the global information infrastructure to degrade, disrupt, influence, respond to or interfere with the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group as they relate to international affairs, defence or security.

Marginal note:Technical and operational assistance

20 The technical and operational assistance aspect of the Establishment’s mandate is to provide technical and operational assistance to federal law enforcement and security agencies, the Canadian Forces and the Department of National Defence.

Marginal note:Designation

• 21 (1) The Minister may, by order, designate any electronic information, any information infrastructures or any class of electronic information or information infrastructures as electronic information or information infrastructures — as the case may be — of importance to the Government of Canada.

• Marginal note:Statutory Instruments Act

  (2) An order made under subsection (1) is not a statutory instrument within the meaning of the Statutory Instruments Act.

Activities

Marginal note:No activities — Canadians and persons in Canada

• 22 (1) Activities carried out by the Establishment in furtherance of the foreign intelligence, cybersecurity and information assurance, defensive cyber operations or active cyber operations aspects of its mandate must not be directed at a Canadian or at any person in Canada and must not infringe the Canadian Charter of Rights and Freedoms.

• Marginal note:No activities — global information infrastructure in Canada or without authorization

  (2) Activities carried out by the Establishment in furtherance of the defensive cyber operations or active cyber operations aspects of its mandate

  • (a) must not be directed at any portion of the global information infrastructure that is in Canada; and

  • (b) must not be carried out except under an authorization issued under subsection 29(1) or 30(1).

• Marginal note:Contravention of other Acts — foreign intelligence

  (3) Activities carried out by the Establishment in furtherance of the foreign intelligence aspect of its mandate must not contravene any other Act of Parliament — or involve the acquisition by the Establishment of information from or through the global information infrastructure that interferes with the reasonable expectation of privacy of a Canadian or a person in Canada — unless they are carried out under an authorization issued under subsection 26(1) or 40(1).

• Marginal note:Contravention of other Acts — cybersecurity and information assurance

  (4) Activities carried out by the Establishment in furtherance of the cybersecurity and information assurance aspect of its mandate must not contravene any other Act of Parliament — or involve the acquisition by the Establishment of information from the global information infrastructure that interferes with the reasonable expectation of privacy of a Canadian or a person in Canada — unless they are carried out under an authorization issued under subsection 27(1) or (2) or 40(1).

Marginal note:Establishment’s activities

• 23 (1) Despite subsections 22(1) and (2), the Establishment may carry out any of the following activities in furtherance of its mandate:

  • (a) acquiring, using, analysing, retaining or disclosing publicly available information;

  • (b) acquiring, using, analysing, retaining or disclosing infrastructure information for the purpose of research and development, for the purpose of testing systems or conducting cybersecurity and information assurance activities on the infrastructure from which the information was acquired; and

  • (c) testing or evaluating products, software and systems, including testing or evaluating them for vulnerabilities.

• Marginal note:Investment Canada Act

  (2) Despite subsection 22(1), in furtherance of its mandate the Establishment may analyse information for the purpose of providing advice to the Minister of Public Safety and Emergency Preparedness and to the Minister responsible for the administration of the Investment Canada Act with regard to that latter Minister’s powers and duties under Part IV.1 of that Act.

• Marginal note:Cybersecurity and information assurance

  (3) Despite subsection 22(1), the Establishment may carry out any of the following activities in furtherance of the cybersecurity and information assurance aspect of its mandate:

  • (a) carrying out activities on information infrastructures to identify or isolate malicious software, prevent malicious software from harming those information infrastructures or mitigate any harm that malicious software causes to them; and

  • (b) analysing information in order to be able to provide advice on the integrity of supply chains and on the trustworthiness of telecommunications, equipment and services.

• Marginal note:Information acquired incidentally

  (4) The Establishment may acquire information relating to a Canadian or a person in Canada incidentally in the course of carrying out activities under an authorization issued under subsection 26(1), 27(1) or (2) or 40(1).

• Marginal note:Definitions

  (5) The following definitions apply in this section.

  incidentally

  incidentally, with respect to the acquisition of information, means that the information acquired was not itself deliberately sought and that the information-acquisition activity was not directed at the Canadian or person in Canada. (incidemment)

  infrastructure information

  infrastructure information means information relating to

  • (a) any functional component, physical or logical, of the global information infrastructure; or

  • (b) events that occur during the interaction between two or more devices that provide services on a network — not including end-point devices that are linked to individual users — or between an individual and a machine, if the interaction is about only a functional component of the global information infrastructure.

  It does not include information that could be linked to an identifiable person. (information sur l’infrastructure)

Marginal note:Measures to protect privacy

24 The Establishment must ensure that measures are in place to protect the privacy of Canadians and of persons in Canada in the use, analysis, retention and disclosure of

• (a) information related to them acquired in the course of the furtherance of the foreign intelligence and cybersecurity and information assurance aspects of the Establishment’s mandate; or

• (b) publicly available information related to them acquired under paragraph 23(1)(a).

Marginal note:Technical and operational assistance activities

• 25 (1) If the Establishment provides assistance in furtherance of the technical and operational assistance aspect of its mandate, then the Establishment, in the course of providing the assistance, has the same authority to carry out any activity as would have the federal law enforcement or security agency, the Canadian Forces or the Department of National Defence, as the case may be, if it were carrying out the activity, and is subject to any limitations imposed by law on the agency, the Canadian Forces or that Department, including requirements with respect to any applicable warrant.

• Marginal note:Exemptions, protections and immunities

  (2) If the Establishment provides assistance in furtherance of the technical and operational assistance aspect of its mandate, then persons authorized to act on the Establishment’s behalf benefit from the same exemptions, protections and immunities as would persons authorized to act on behalf of the federal law enforcement or security agency, the Canadian Forces or the Department of National Defence, as the case may be, if those persons were carrying out the activity.

Authorizations

Foreign Intelligence and Cybersecurity Authorizations

Marginal note:Foreign Intelligence Authorizations

• 26 (1) The Minister may issue a Foreign Intelligence Authorization to the Establishment that authorizes it, despite any other Act of Parliament or of any foreign state, to carry out, on or through the global information infrastructure, any activity specified in the authorization in the furtherance of the foreign intelligence aspect of its mandate.

• Marginal note:Activities authorized

  (2) Activities and classes of activities that a Foreign Intelligence Authorization may authorize the Establishment to carry out may include any of the following:

  • (a) gaining access to a portion of the global information infrastructure;

  • (b) acquiring information on or through the global information infrastructure, including unselected information;

  • (c) installing, maintaining, copying, distributing, searching, modifying, disrupting, deleting or intercepting anything on or through the global information infrastructure;

  • (d) doing anything that is reasonably necessary to maintain the covert nature of the activity; and

  • (e) carrying out any other activity that is reasonable in the circumstances and reasonably necessary in aid of any other activity, or class of activity, authorized by the authorization.

Marginal note:Cybersecurity Authorizations — federal infrastructures

• 27 (1) The Minister may issue a Cybersecurity Authorization to the Establishment that authorizes it, despite any other Act of Parliament, to, in the furtherance of the cybersecurity and information assurance aspect of its mandate, access a federal institution’s information infrastructure and acquire any information originating from, directed to, stored on or being transmitted on or through that infrastructure for the purpose of helping to protect it, in the circumstances described in paragraph 184(2)(e) of the Criminal Code, from mischief, unauthorized use or disruption.

• Marginal note:Cybersecurity Authorizations — non-federal infrastructures

  (2) The Minister may issue a Cybersecurity Authorization to the Establishment that authorizes it, despite any other Act of Parliament, to, in the furtherance of the cybersecurity and information assurance aspect of its mandate, access an information infrastructure designated under subsection 21(1) as an information infrastructure of importance to the Government of Canada and acquire any information originating from, directed to, stored on or being transmitted on or through that infrastructure for the purpose of helping to protect it, in the circumstances described in paragraph 184(2)(e) of the Criminal Code, from mischief, unauthorized use or disruption.

Marginal note:Approval of Commissioner

• 28 (1) An authorization issued under subsection 26(1) or 27(1) or (2) is valid when — if it 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 authorization.

• Marginal note:No activities until authorization valid

  (2) For greater certainty, no activity that is specified in an authorization issued under subsection 26(1) or 27(1) or (2) is authorized until the authorization is valid under subsection (1).

Cyber Operations Authorizations

Marginal note:Defensive Cyber Operations Authorizations

• 29 (1) The Minister may issue a Defensive Cyber Operations Authorization to the Establishment that authorizes it, despite any other Act of Parliament or of any foreign state, to carry out, on or through the global information infrastructure, any activity specified in the authorization in the furtherance of the defensive cyber operations aspect of its mandate.

• Marginal note:Minister of Foreign Affairs

  (2) The Minister may issue the authorization only if he or she has consulted the Minister of Foreign Affairs.

Marginal note:Active Cyber Operations Authorizations

• 30 (1) The Minister may issue an Active Cyber Operations Authorization to the Establishment that authorizes it, despite any other Act of Parliament or of any foreign state, to carry out, on or through the global information infrastructure, any activity specified in the authorization in the furtherance of the active cyber operations aspect of its mandate.

• Marginal note:Minister of Foreign Affairs

  (2) The Minister may issue the authorization only if the Minister of Foreign Affairs has requested the authorization’s issue or has consented to its issue.

• Marginal note:Request or consent in writing

  (3) The request or consent of the Minister of Foreign Affairs may be oral, but in that case he or she must provide written confirmation of the request or consent to the Minister as soon as feasible.

Marginal note:Activities authorized

31 Activities and classes of activities that an authorization issued under subsection 29(1) or 30(1) may authorize the Establishment to carry out may include any of the following:

• (a) gaining access to a portion of the global information infrastructure;

• (b) installing, maintaining, copying, distributing, searching, modifying, disrupting, deleting or intercepting anything on or through the global information infrastructure;

• (c) doing anything that is reasonably necessary to maintain the covert nature of the activity; and

• (d) carrying out any other activity that is reasonable in the circumstances and reasonably necessary in aid of any other activity, or class of activities, authorized by the authorization.

Marginal note:Prohibited conduct

• 32 (1) In carrying out any activity under an authorization issued under subsection 29(1) or 30(1), the Establishment must not

  • (a) cause, intentionally or by criminal negligence, death or bodily harm to an individual; or

  • (b) wilfully attempt in any manner to obstruct, pervert or defeat the course of justice or democracy.

• Marginal note:Definition of bodily harm

  (2) In subsection (1), bodily harm has the same meaning as in section 2 of the Criminal Code.

Procedure

Marginal note:Applications for authorizations

• 33 (1) The Minister may issue an authorization under subsection 26(1), 27(1) or (2), 29(1) or 30(1) only on the written application of the Chief.

• Marginal note:Contents of application

  (2) The application must set out the facts that would allow the Minister to conclude that there are reasonable grounds to believe that the authorization is necessary and that the conditions for issuing it are met.

• Marginal note:Written request of infrastructure owner or operator

  (3) If the application is for an authorization to be issued under subsection 27(2), the application must include the written request of the owner or operator of the information infrastructure to the Establishment to carry out the activity that would be authorized.

• Marginal note:Minister of Foreign Affairs’ request or consent

  (4) If the application is for an authorization to be issued under subsection 30(1), the application must include the request or consent referred to in subsection 30(2) if it is in writing.

Marginal note:Conditions for authorizations

• 34 (1) The Minister may issue an authorization under subsection 26(1), 27(1) or (2), 29(1) or 30(1) only if he or she concludes that there are reasonable grounds to believe that any activity that would be authorized by it is reasonable and proportionate, having regard to the nature of the objective to be achieved and the nature of the activities.

• Marginal note:Conditions for authorizations — foreign intelligence

  (2) The Minister may issue an authorization under subsection 26(1) only if he or she concludes that there are reasonable grounds to believe — in addition to the matters referred to in subsection (1) — that

  • (a) any information acquired under the authorization could not reasonably be acquired by other means and will be retained for no longer than is reasonably necessary;

  • (b) any unselected information acquired under the authorization could not reasonably be acquired by other means, in the case of an authorization that authorizes the acquisition of unselected information; and

  • (c) the measures referred to in section 24 will ensure that information acquired under the authorization that is identified as relating to a Canadian or a person in Canada will be used, analysed or retained only if the information is essential to international affairs, defence or security.

• Marginal note:Conditions for authorizations — cybersecurity

  (3) The Minister may issue an authorization under subsection 27(1) or (2) only if he or she concludes that there are reasonable grounds to believe — in addition to the matters referred to in subsection (1) — that

  • (a) any information acquired under the authorization will be retained for no longer than is reasonably necessary;

  • (b) the consent of all persons whose information may be acquired could not reasonably be obtained, in the case of an authorization to be issued under subsection 27(1);

  • (c) any information acquired under the authorization is necessary to identify, isolate, prevent or mitigate harm to

    • (i) federal institutions’ electronic information or information infrastructures, in the case of an authorization to be issued under subsection 27(1), or

    • (ii) electronic information or information infrastructures designated under subsection 21(1) as being of importance to the Government of Canada, in the case of an authorization to be issued under subsection 27(2); and

  • (d) the measures referred to in section 24 will ensure that information acquired under the authorization that is identified as relating to a Canadian or a person in Canada will be used, analysed or retained only if the information is essential to identify, isolate, prevent or mitigate harm to

    • (i) federal institutions’ electronic information or information infrastructures, in the case of an authorization to be issued under subsection 27(1), or

    • (ii) electronic information or information infrastructures designated under subsection 21(1) as being of importance to the Government of Canada, in the case of an authorization to be issued under subsection 27(2).

• Marginal note:Conditions for authorizations — defensive and active cyber operations

  (4) The Minister may issue an authorization under subsection 29(1) or 30(1) only if he or she concludes that there are reasonable grounds to believe — in addition to the matters referred to in subsection (1) — that the objective of the cyber operation could not reasonably be achieved by other means and that no information will be acquired under the authorization except in accordance with an authorization issued under subsection 26(1) or 27(1) or (2) or 40(1).

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.

Marginal note:Assistance or disclosure of information — no presumptions

56 The provision of assistance or the disclosure of information by the Establishment under this Act does not create a presumption

• (a) that the Establishment is conducting a joint investigation or decision-making process with the entity to which assistance is provided or information is disclosed and therefore has the same obligations, if any, as the entity to disclose or produce information for the purposes of a proceeding; or

• (b) there has been a waiver of any privilege, or of any requirement to obtain consent, for the purposes of any other disclosure of that information either in a proceeding or to an entity that is not a federal institution.

Marginal note:Access to Information Act

57 For the purposes of the Access to Information Act, if any record, as defined in section 3 of that Act, of any other government institution, as defined in that section, or of any other organization is contained in or carried on the Establishment’s information infrastructure on behalf of that institution or organization, the record is not under the Establishment’s control.

Marginal note:Privacy Act

58 For the purposes of the Privacy Act, if any personal information, as defined in section 3 of that Act, of any other government institution, as defined in that section, or of any other organization is contained in or carried on the Establishment’s information infrastructure on behalf of that institution or organization, the personal information is not held by the Establishment and is not under the Establishment’s control.

Marginal note:Annual Report

59 The Establishment must, within three months after the end of each fiscal year, publish an annual report on its activities during that fiscal year.

Regulations

Marginal note:Regulations

60 The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Act, including regulations

• (a) respecting the management and control of the Establishment, including security on and around the Establishment’s premises, access to its premises, the search of persons on or around its premises and the search and seizure of items on or around its premises;

• (b) respecting the measures referred to in section 24 to protect the privacy of Canadians and of persons in Canada; and

• (c) amending the definition of any term defined in section 2 or subsection 23(5) or 44(3) to respond, directly or indirectly, to any technological change.