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

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.