National Security Act, 2017 (S.C. 2019, c. 13)

• Marginal note:Limits

  (2) The measures shall be reasonable and proportional in the circumstances, having regard to the nature of the threat, the nature of the measures, the reasonable availability of other means to reduce the threat and the reasonably foreseeable effects on third parties, including on their right to privacy.

• Marginal note:Alternatives

  (3) Before taking measures under subsection (1), the Service shall consult, as appropriate, with other federal departments or agencies as to whether they are in a position to reduce the threat.

• Marginal note:Canadian Charter of Rights and Freedoms

  (3.1) The Canadian Charter of Rights and Freedoms is part of the supreme law of Canada and all measures taken by the Service under subsection (1) shall comply with it.

• Marginal note:Warrant — Canadian Charter of Rights and Freedoms

  (3.2) The Service may take measures under subsection (1) that would limit a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms only if a judge, on an application made under section 21.1, issues a warrant authorizing the taking of those measures.

• Marginal note:Condition for issuance

  (3.3) The judge may issue the warrant referred to in subsection (3.2) only if he or she is satisfied that the measures, as authorized by the warrant, comply with the Canadian Charter of Rights and Freedoms.

• Marginal note:Warrant — Canadian law

  (3.4) The Service may take measures under subsection (1) that would otherwise be contrary to Canadian law only if the measures have been authorized by a warrant issued under section 21.1.

• Marginal note:Notification of Review Committee

  (3.5) The Service shall, after taking measures under subsection (1), notify the Review Committee of the measures as soon as the circumstances permit.

Marginal note:Exemption — employees

• 18.2 (1) No employee is guilty of an offence by reason only that the employee, in the course of their duties and functions and for the sole purpose of establishing or maintaining a covert identity, makes a false statement with respect to a covert identity or makes, procures to be made, requests, possesses, uses or transfers a false document or acts on or authenticates a false document as if it were genuine.

• Marginal note:Exemption — other persons

  (2) No person is guilty of an offence by reason only that the person, under the direction of an employee and for the sole purpose of establishing or maintaining a covert identity, makes a false statement with respect to a covert identity or makes, procures to be made, requests, possesses, uses or transfers a false document or acts on or authenticates a false document as if it were genuine.

• Marginal note:Exemption — section 368.1 of Criminal Code

  (3) No employee is guilty of an offence under section 368.1 of the Criminal Code if the acts alleged to constitute the offence were committed by the employee in the course of their duties and functions and for the sole purpose of establishing or maintaining a covert identity.

• Marginal note:Definition of false document

  (4) In subsections (1) and (2), false document has the same meaning as in section 321 of the Criminal Code.

Marginal note:Definitions

• 20.1 (1) The following definitions apply in this section.

  designated employee

  designated employee means an employee who is designated under subsection (6) or (8). (employé désigné)

  designated senior employee

  designated senior employee means an employee who is designated under subsection (7). (employé supérieur désigné)

• Marginal note:Principle — justification

  (2) It is in the public interest to ensure that employees effectively carry out the Service’s information and intelligence collection duties and functions, including by engaging in covert activities, in accordance with the rule of law and, to that end, to expressly recognize in law a limited justification for designated employees acting in good faith and persons acting under their direction to commit acts or omissions that would otherwise constitute offences.

• Marginal note:Classes of acts or omissions

  (3) At least once every year, the Minister shall, by order, determine the classes of acts or omissions that would otherwise constitute offences and that designated employees may be justified in committing or directing another person to commit if the Minister concludes that the commission of those acts or omissions is reasonable, having regard to

  • (a) the Service’s information and intelligence collection duties and functions; and

  • (b) any threats to the security of Canada that may be the object of information and intelligence collection activities or any objectives to be achieved by such activities.

• Marginal note:Statutory Instruments Act

  (4) An order made under subsection (3) is not a statutory instrument within the meaning of the Statutory Instruments Act.

• Marginal note:Notification of Commissioner

  (5) The Minister shall notify the Commissioner of the Minister’s determination under subsection (3) for the purposes of the Commissioner’s review and approval under the Intelligence Commissioner Act.

• Marginal note:Designation of employees

  (6) The Minister may personally, on the recommendation of the Director and for a period of not more than one year, designate, for the purpose of this section, employees who perform information and intelligence collection activities.

• Marginal note:Designation of senior employees

  (7) The Minister may personally, on the recommendation of the Director, designate, for the purpose of this section, senior employees who are responsible for information and intelligence collection activities.

• Marginal note:Emergency designation

  (8) The Director or a designated senior employee may, for a period of not more than 48 hours, designate, for the purpose of this section, an employee who performs information and intelligence collection activities if the Director or the designated senior employee is of the opinion that

  • (a) by reason of exigent circumstances, it is not feasible for the Minister to designate the employee under subsection (6); and

  • (b) the employee would be justified in committing an act or omission that would otherwise constitute an offence.

• Marginal note:Notification of Minister

  (9) The Director or the designated senior employee, as the case may be, shall notify the Minister of the designation as soon as the circumstances permit.

• Marginal note:Conditions

  (10) A designation under subsection (6) or (8) may be made subject to conditions, including conditions limiting

  • (a) its duration;

  • (b) the nature of the information and intelligence collection activities in the context of which a designated employee may be justified in committing, or directing another person to commit, an act or omission that would otherwise constitute an offence; and

  • (c) the act or omission that would otherwise constitute an offence and that a designated employee may be justified in committing or directing another person to commit.

• Marginal note:Justification for acts or omissions

  (11) Subject to subsection (15), a designated employee is justified in committing an act or omission that would otherwise constitute an offence if

  • (a) the designated employee

    • (i) is engaged, in good faith, in an information and intelligence collection activity in relation to a threat to the security of Canada, and

    • (ii) believes on reasonable grounds that the commission of the act or omission, as compared to the threat, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the threat, the nature of the act or omission and the reasonable availability of other means for performing the information and intelligence collection activity; or

  • (b) the designated employee

    • (i) is engaged, in good faith, in an information and intelligence collection activity under section 16, and

    • (ii) believes on reasonable grounds that the commission of the act or omission is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the objective to be achieved and the reasonable availability of other means to achieve the objective.

• Marginal note:Authorization

  (12) The Director or a designated senior employee may, in writing, authorize designated employees, for a period of not more than one year, to direct the commission of acts or omissions that would otherwise constitute offences if the Director or the designated senior employee believes on reasonable grounds

  • (a) in the case of an activity described in subparagraph (11)(a)(i), that the commission of the acts or omissions, as compared to the threat to the security of Canada to which the activity relates, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the threat, the nature of the acts or omissions and the reasonable availability of other means for performing the activity; or

  • (b) in the case of an activity described in subparagraph (11)(b)(i), that the commission of the acts or omissions is reasonable and proportional in the circumstances, having regard to such matters as the nature of the acts or omissions, the nature of the objective to be achieved and the reasonable availability of other means to achieve the objective.

• Marginal note:Contents

  (13) The authorization shall specify

  • (a) the acts or omissions that would otherwise constitute offences;

  • (b) the designated employees who are authorized to direct the commission of those acts or omissions; and

  • (c) the persons who may be directed to commit those acts or omissions.

• Marginal note:Amendment or cancellation

  (14) The authorization may be amended or cancelled by the Director or a designated senior employee.

• Marginal note:Justification for directing

  (15) A designated employee is only justified in directing the commission of an act or omission that would otherwise constitute an offence if the conditions in paragraph (11)(a) or (b) are met and the designated employee

  • (a) is personally authorized to direct the commission of the act or omission under subsection (12); or

  • (b) believes on reasonable grounds that grounds for obtaining an authorization under that subsection exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to

    • (i) preserve the life or safety of any individual,

    • (ii) prevent the compromise of the identity of an employee acting covertly, of a human source or of a person acting covertly under the direction of an employee, or

    • (iii) prevent the imminent loss or destruction of information or intelligence.

• Marginal note:Person acting under direction of designated employee

  (16) A person, other than an employee, is justified in committing an act or omission that would otherwise constitute an offence if

  • (a) they are directed by a designated employee to commit the act or omission; and

  • (b) they believe on reasonable grounds that the person who directs them to commit the act or omission has the authority to give that direction.

• Marginal note:Classes of acts or omissions

  (17) A designated employee is only justified in committing, or directing another person to commit, an act or omission that would otherwise constitute an offence if the act or omission falls within a class of acts or omissions the determination of which is approved by the Commissioner under the Intelligence Commissioner Act.

• Marginal note:Limitation

  (18) Nothing in this section justifies

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

  • (b) wilfully attempting in any manner to obstruct, pervert or defeat the course of justice;

  • (c) violating the sexual integrity of an individual;

  • (d) subjecting an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture;

  • (e) detaining an individual; or

  • (f) causing the loss of, or any serious damage to, any property if doing so would endanger the safety of an individual.

• Marginal note:Ministerial direction

  (19) Nothing in this section justifies the commission of an act or omission specified in a direction issued by the Minister for the purpose of this section, under subsection 6(2).

• Marginal note:Protection, defences and immunities unaffected

  (20) Nothing in this section affects the protection, defences and immunities of employees and other persons recognized under the law of Canada.

• Marginal note:Requirement to obtain warrant

  (21) Nothing in this section relieves the Director or an employee from the requirement to obtain a warrant in accordance with section 21.

• Marginal note:Canadian Charter of Rights and Freedoms

  (22) Nothing in this section justifies the commission of an act or omission that would infringe a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.

• Marginal note:Report by designated employee

  (23) A designated employee who commits an act or omission in accordance with subsection (11) or who directs the commission of an act or omission in accordance with subsection (15) shall, as soon as the circumstances permit after doing so, submit a written report to the Director or a designated senior employee describing the act or omission.

• Marginal note:Annual report

  (24) The Minister shall, every year, publish or otherwise make available to the public a report in respect of the previous year that includes

  • (a) the number of designations that were made under subsection (8);

  • (b) the number of authorizations that were given under subsection (12);

  • (c) the number of times that designated employees directed the commission of acts or omissions in accordance with paragraph (15)(b);

  • (d) the nature of the threats to the security of Canada that were the object of the information and intelligence collection activities in the context of which the designations referred to in paragraph (a) were made, the authorizations referred to in paragraph (b) were given or the acts or omissions referred to in paragraph (c) were directed to be committed; and

  • (e) the nature of the acts or omissions that were committed under the designations referred to in paragraph (a) or that were directed to be committed under the authorizations referred to in paragraph (b) or in accordance with paragraph (15)(b).

• Marginal note:Limitation

  (25) The report is not to contain any information the disclosure of which would

  • (a) compromise or hinder an ongoing information and intelligence collection activity;

  • (b) compromise the identity of an employee acting covertly, of a human source or of a person acting covertly under the direction of an employee;

  • (c) endanger the life or safety of any individual;

  • (d) prejudice a legal proceeding; or

  • (e) be contrary to the public interest.

• Marginal note:Notification of Review Agency

  (26) The Service shall notify the Review Agency as soon as the circumstances permit after

  • (a) a designation is made under subsection (8);

  • (b) an authorization is given under subsection (12); or

  • (c) a written report is submitted under subsection (23).

• Marginal note:Statutory Instruments Act

  (27) For greater certainty, designations, authorizations and directions referred to in this section are not statutory instruments within the meaning of the Statutory Instruments Act.

Report to Parliament

Marginal note:Report

• 20.2 (1) The Service shall, within three months after the end of each calendar year, submit to the Minister a report of the activities of the Service during the preceding calendar year, and the Minister shall cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives it.