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Coming into Force
Thirty days after royal assent
39. (1) Subsection 15(2), sections 17, 18 and 24, subsection 25(1) and sections 26 to 29, 32 and 33 come into force 30 days after the day on which this Act receives royal assent.
Subsection 25(2)
(2) Subsection 25(2) comes into force on the later of 30 days after the day on which this Act receives royal assent and the day on which subsection 8(3) of the Response to the Supreme Court of Canada Decision in R. v. Shoker Act comes into force.
PART 4
R.S., c. C-23
CANADIAN SECURITY INTELLIGENCE SERVICE ACT
40. Section 6 of the Canadian Security Intelligence Service Act is amended by adding the following after subsection (4):
Measures to reduce threats to the security of Canada
(5) The reports shall include, among other things, the following information in respect of the Service’s operational activities, during the period for which the report is made, to reduce threats to the security of Canada:
(a) for each of the paragraphs of the definition “threats to the security of Canada” in section 2, a general description of the measures that were taken during the period in respect of the threat within the meaning of that paragraph and the number of those measures;
(b) the number of warrants issued under subsection 21.1(3) during the period and the number of applications for warrants made under subsection 21.1(1) that were refused during the period; and
(c) for each threat to the security of Canada for which warrants have been issued under subsection 21.1(3) before or during the period, a general description of the measures that were taken under the warrants during the period.
41. Subsection 7(2) of the Act is replaced by the following:
Consultation with Deputy Minister — warrant
(2) The Director or any employee who is designated by the Minister for the purpose of applying for a warrant under section 21, 21.1 or 23 shall consult the Deputy Minister before applying for the warrant or the renewal of the warrant.
42. The Act is amended by adding the following after section 12:
Measures to reduce threats to the security of Canada
12.1 (1) If there are reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada, the Service may take measures, within or outside Canada, to reduce the threat.
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 and the reasonable availability of other means to reduce the threat.
Warrant
(3) The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1.
Prohibited conduct
12.2 (1) In taking measures to reduce a threat to the security of Canada, the Service shall not
(a) cause, intentionally or by criminal negligence, death or bodily harm to an individual;
(b) wilfully attempt in any manner to obstruct, pervert or defeat the course of justice; or
(c) violate the sexual integrity of an individ- ual.
Definition of “bodily harm”
(2) In subsection (1), “bodily harm” has the same meaning as in section 2 of the Criminal Code.
43. Paragraph 21(2)(h) of the Act is replaced by the following:
(h) any previous application made under subsection (1) in relation to a person who is identified in the affidavit in accordance with paragraph (d), the date on which each such application was made, the name of the judge to whom it was made and the judge’s decision on it.
44. The Act is amended by adding the following after section 21:
Application for warrant — measures to reduce threats to the security of Canada
21.1 (1) If the Director or any employee who is designated by the Minister for the purpose believes on reasonable grounds that a warrant under this section is required to enable the Service to take measures, within or outside Canada, to reduce a threat to the security of Canada, the Director or employee may, after having obtained the Minister’s approval, make an application in accordance with subsection (2) to a judge for a warrant under this section.
Matters to be specified in application
(2) An application to a judge under subsection (1) shall be made in writing and be accompanied by the applicant’s affidavit deposing to the following matters:
(a) the facts relied on to justify the belief on reasonable grounds that a warrant under this section is required to enable the Service to take measures to reduce a threat to the security of Canada;
(b) the measures proposed to be taken;
(c) the reasonableness and proportionality, in the circumstances, of the proposed measures, having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat;
(d) the identity of the persons, if known, who are directly affected by the proposed meas- ures;
(e) the persons or classes of persons to whom the warrant is proposed to be directed;
(f) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;
(g) the period, not exceeding 60 days or 120 days, as the case may be, for which the warrant is requested to be in force that is applicable by virtue of subsection (6); and
(h) any previous application made under subsection (1) in relation to a person who is identified in the affidavit in accordance with paragraph (d), the date on which each such application was made, the name of the judge to whom it was made and the judge’s decision on it.
Issuance of warrant
(3) Despite any other law but subject to the Statistics Act, if the judge to whom an application under subsection (1) is made is satisfied of the matters referred to in paragraphs (2)(a) and (c) that are set out in the affidavit accompanying the application, the judge may issue a warrant authorizing the persons to whom it is directed to take the measures specified in it and, for that purpose,
(a) to enter any place or open or obtain access to any thing;
(b) to search for, remove or return, or examine, take extracts from or make copies of or record in any other manner the information, record, document or thing;
(c) to install, maintain or remove any thing; or
(d) to do any other thing that is reasonably necessary to take those measures.
Measures taken outside Canada
(4) Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize the measures specified in it to be taken outside Canada.
Matters to be specified in warrant
(5) There shall be specified in a warrant issued under subsection (3)
(a) the measures authorized to be taken;
(b) the identity of the persons, if known, who are directly affected by the measures;
(c) the persons or classes of persons to whom the warrant is directed;
(d) a general description of the place where the warrant may be executed, if a general description of that place can be given;
(e) the period for which the warrant is in force; and
(f) any terms and conditions that the judge considers advisable in the public interest.
Maximum duration of warrant
(6) A warrant shall not be issued under subsection (3) for a period exceeding
(a) 60 days if the warrant is issued to enable the Service to take measures to reduce a threat to the security of Canada within the meaning of paragraph (d) of the definition “threats to the security of Canada” in section 2; or
(b) 120 days in any other case.
45. Section 23 of the Act is replaced by the following:
Renewal of warrant — measures to reduce threats to the security of Canada
22.1 (1) On application in writing to a judge for the renewal of a warrant issued under subsection 21.1(3) made by a person who is entitled, after having obtained the Minister’s approval, to apply for such a warrant and who believes on reasonable grounds that the warrant continues to be required to enable the Service to take the measures specified in it to reduce a threat to the security of Canada, the judge may renew the warrant if the judge is satisfied by evidence on oath of the following matters:
(a) the facts relied on to justify the belief on reasonable grounds that the warrant continues to be required to enable the Service to take the measures specified in it to reduce a threat to the security of Canada; and
(b) the continued reasonableness and proportionality, in the circumstances, of the measures specified in the warrant, having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat.
Limits on renewal
(2) A warrant issued under subsection 21.1(3) may be renewed only twice, with each renewal being for a period not exceeding the period for which it may be issued under subsection 21.1(6).
Limits on execution of warrant
22.2 A person to whom — or a person who is included in a class of persons to whom — a warrant issued under section 21.1 is directed may take the measures specified in it only if, at the time that they take them, they believe on reasonable grounds that the measures are reasonable and proportional in the circumstances, having regard to the nature of the threat to the security of Canada, the nature of the measures and the reasonable availability of other means to reduce the threat.
Assistance order
22.3 (1) A judge may order any person to provide assistance if the person’s assistance may reasonably be considered to be required to give effect to a warrant issued under section 21 or 21.1.
Confidentiality
(2) The judge may include in the order any measure that the judge considers necessary in the public interest to ensure the confidentiality of the order, including the identity of any person who is required to provide assistance under the order and any other information concerning the provision of the assistance.
Warrant authorizing removal
23. (1) On application in writing by the Director or any employee who is designated by the Minister for the purpose, a judge may, if the judge thinks fit, issue a warrant authorizing the persons to whom the warrant is directed to remove from any place any thing installed in accordance with a warrant issued under subsection 21(3) or 21.1(3) and, for that purpose, to enter any place or open or obtain access to any thing.
Matters to be specified in warrant
(2) There shall be specified in a warrant issued under subsection (1) the matters referred to in paragraphs 21(4)(c) to (f) or 21.1(5)(c) to (f), as the case may be.
46. The Act is amended by adding the following after section 24:
Authorization to request assistance
24.1 (1) A person to whom — or a person who is included in a class of persons to whom — a warrant issued under section 21.1 is directed may request that another person assist them in taking any measure that the requester is authorized to take under the warrant if the requester believes on reasonable grounds that the measure is reasonable and proportional in the circumstances, having regard to the nature of the threat to the security of Canada, the nature of the measure and the reasonable availability of other means to reduce the threat.
Person giving assistance
(2) A person to whom a request is made under subsection (1) is justified in assisting the requester in taking the measure if the person believes on reasonable grounds that the request- er has the authority to take the measure.
47. Paragraph 25(a) of the Act is replaced by the following:
(a) the use or disclosure in accordance with this Act of any communication intercepted under the authority of a warrant issued under section 21 or 21.1; or
48. Sections 26 and 27 of the Act are replaced by the following:
Exclusion of Part VI of Criminal Code
26. Part VI of the Criminal Code does not apply in relation to any interception of a communication under the authority of a warrant issued under section 21 or 21.1 or in relation to any communication so intercepted.
Hearing of applications
27. An application under section 21, 21.1 or 23 for a warrant, an application under section 22 or 22.1 for the renewal of a warrant or an application for an order under section 22.3 shall be heard in private in accordance with regulations made under section 28.
49. Paragraphs 28(a) and (b) of the Act are replaced by the following:
(a) prescribing the forms of warrants that may be issued under section 21, 21.1 or 23;
(b) governing the practice and procedure of, and security requirements applicable to, hearings of applications for those warrants, for renewals of those warrants and for orders that may be made under section 22.3; and
50. Section 38 of the Act is amended by adding the following after subsection (1):
Review of measures
(1.1) In reviewing the performance by the Service of its duties and functions the Review Committee shall, each fiscal year, review at least one aspect of the Service’s performance in taking measures to reduce threats to the security of Canada.
51. Section 53 of the Act is renumbered as subsection 53(1) and is amended by adding the following:
Additional information
(2) In addition, the report shall specify the number of warrants issued under section 21.1 in the fiscal year and the number of applications for warrants made under that section that were refused in that year.
PART 5
2001, c. 27
IMMIGRATION AND REFUGEE PROTECTION ACT
Amendments to the Act
52. Subsection 72(1) of the Immigration and Refugee Protection Act is replaced by the following:
Application for judicial review
72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is, subject to section 86.1, commenced by making an application for leave to the Court.
53. Paragraph 74(d) of the Act is replaced by the following:
(d) subject to section 87.01, an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.
54. Subsections 77(2) and (3) of the Act are replaced by the following:
Filing of evidence and summary
(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence that is relevant to the ground of inadmissibility stated in the certificate and on which the certificate is based, as well as a summary of information and other evidence that enables the person named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.
Effect of referral
(3) Once the certificate is referred, no proceeding under this Act respecting the person who is named in the certificate — other than proceedings relating to sections 79.1, 82 to 82.31, 112 and 115 — may be commenced or continued until the judge determines whether the certificate is reasonable.
55. The Act is amended by adding the following after section 79:
Appeal by Minister
79.1 (1) Despite section 79, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.
Effects of appeal
(2) The appeal suspends the execution of the decision, as well as the proceeding under section 78, until the appeal has been finally determined.
56. The Act is amended by adding the following after section 82.3:
Appeal by Minister
82.31 (1) Despite section 82.3, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.
Effects of appeal
(2) The appeal suspends the execution of the decision until the appeal has been finally determined.
57. (1) Subsection 83(1) of the Act is amended by adding the following after paragraph (c):
(c.1) on the request of the Minister, the judge may exempt the Minister from the obligation to provide the special advocate with a copy of information under paragraph 85.4(1)(b) if the judge is satisfied that the information does not enable the permanent resident or foreign national to be reasonably informed of the case made by the Minister;
(c.2) for the purpose of deciding whether to grant an exemption under paragraph (c.1), the judge may ask the special advocate to make submissions and may communicate with the special advocate to the extent required to enable the special advocate to make the submissions, if the judge is of the opinion that considerations of fairness and natural justice require it;
(2) Subsection 83(1) of the Act is amended by striking out “and” at the end of paragraph (i), by adding “and” at the end of paragraph (j) and by adding the following after paragraph (j):
(k) the judge shall not base a decision on information that the Minister is exempted from providing to the special advocate, shall ensure the confidentiality of that information and shall return it to the Minister.
58. Section 84 of the Act is replaced by the following:
Protection of information on appeal
84. Section 83 — other than the obligation to provide a summary — and sections 85.1 to 85.5 apply in respect of an appeal under section 79, 79.1, 82.3 or 82.31 and in respect of any further appeal, with any necessary modifications.
59. Subsection 85.4(1) of the Act is replaced by the following:
Obligation to provide information
85.4 (1) Subject to paragraph 83(1)(c.1), the Minister shall, within a period set by the judge,
(a) provide the special advocate with a copy of the information and other evidence that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, on which the certificate or warrant is based and that has been filed with the Federal Court, but that is not disclosed to the permanent resident or foreign national and their counsel; and
(b) provide the special advocate with a copy of any other information that is in the Minister’s possession and that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, but on which the certificate or warrant is not based and that has not been filed with the Federal Court.
60. Section 87 of the Act is replaced by the following:
Judicial review
86.1 (1) The Minister may, at any stage of the proceeding, apply for judicial review of any decision made in a proceeding referred to in section 86 requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person. The application may be made without an application for leave.
Effects of judicial review
(2) The making of the application suspends the execution of the decision and, except in the case of a detention review, the proceeding referred to in section 86, until the application has been finally determined.
Application for non-disclosure — judicial review and appeal
87. The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies in respect of the proceeding and in respect of any appeal of a decision made in the proceeding, with any necessary modifications.
Appeal by Minister
87.01 (1) The Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, to the Federal Court of Appeal any decision made in a judicial review requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.
Effects of appeal
(2) The appeal suspends the execution of the decision, as well as the judicial review, until the appeal has been finally determined.
Transitional Provision
Cases excluded from application of this Part
61. The amendments made by this Part do not apply in respect of an application, proceeding or matter that is pending or in progress under Division 9 of Part 1 of the Immigration and Refugee Protection Act immediately before the coming into force of this Part, or in respect of any appeal or judicial review, commenced on or after that coming into force, of a decision made in such an application, proceeding or matter.
Coming into Force
Order in council
62. This Part comes into force on a day to be fixed by order of the Governor in Council.