Bill C-622

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First Reading

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2nd Session, 41st Parliament,

62-63 Elizabeth II, 2013-2014

house of commons of canada

BILL C-622

An Act to amend the National Defence Act (transparency and accountability), to enact the Intelligence and Security Committee of Parliament Act and to make consequential amendments to other Acts

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Short title

1. This Act may be cited as the CSEC Accountability and Transparency Act.

PART 1

R.S., c. N-5

AMENDMENTS TO THE NATIONAL DEFENCE ACT

2. (1) The definition “private communications” in section 273.61 of the National Defence Act is repealed.

(2) Section 273.61 of the Act is amended by adding the following in alphabetical order:

“Commissioner”
« commissaire »

“Commissioner” means the Commissioner of the Communications Security Establishment appointed under section 273.63.

“Court”
« Cour »

“Court” means the Federal Court.

“protected information”
« renseignements protégés »

“protected information” means any information produced by, conveyed by, or associated with a telecommunication sent or received, inside or outside Canada, by a Canadian or a person in Canada.

“special advocate”
« avocat spécial »

“special advocate” means a person appointed under section 273.71.

3. Section 273.62 of the Act is amended by adding the following after subsection (4):

Duties of Chief

(5) The Chief shall

(a) keep the Minister informed of any sensitive matters that are likely to have a significant impact on

(i) public or international affairs, or

(ii) relevant legal, mandate, ethical, sovereignty, national security or policy issues;

(b) notify the National Security Advisor to the Prime Minister of any operational, policy or other issues affecting the Establishment that may have a significant impact on the wider security and intelligence community; and

(c) inform the Minister and the Commissioner of any operational incidents involving the Establishment that have or may have an impact on the privacy of Canadians.

Report by Chief

(6) Within 90 days after the end of each fiscal year, the Chief shall provide a detailed report to the Minister and the National Security Advisor to the Prime Minister in respect of

(a) the activities carried out by the Establishment during the fiscal year under the mandate set out in section 273.64;

(b) the actions taken by the Establishment during the fiscal year to fulfill the intelligence priorities of the Government of Canada;

(d) current and anticipated threats to the global cyberspace environment.

Report to public

(7) Within 90 days after the end of each fiscal year, the Chief shall make available to the public a report on the matters referred to in subsection (6).

4. (1) Subsections 273.63(1) and (2) of the Act are replaced by the following:

Appointment of Commissioner

273.63 (1) After consultation by the Prime Minister with the Leader of the Opposition in the House of Commons and the leader in the House of Commons of each party having at least 12 members in that House, the Governor in Council may appoint a supernumerary judge or retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office, during good behaviour, for a term of not more than five years.

Duties

(2) The duties of the Commissioner are

(a) to review the activities of the Establishment to ensure that they

(i) comply with the law, court orders and ministerial directives, and

(ii) do not involve an unreasonable or unnecessary exercise of the Establishment’s lawful powers;

(b) to undertake any investigation that the Commissioner considers necessary, whether at his or her own initiative or in response to a complaint;

(c) to review all information-sharing agreements entered into by the Establishment and to review the provision of information and intelligence under those agreements; and

(d) to inform the Minister and the Attorney General of Canada of any activity of the Establishment that the Commissioner believes may not be in compliance with the law or may be unreasonable or unnecessary.

(2) Section 273.63 of the Act is amended by adding the following after subsection (3):

Detailed account

(3.1) The report referred to in subsection (3) must include a sufficiently detailed account of the Commissioner’s findings to meaningfully inform Parliament and the public on matters of public interest, subject only to those exclusions that are necessary to protect the confidentiality of information associated with matters relating to international affairs, defence or security.

5. Section 273.64 of the Act is amended by adding the following after subsection (3):

Record

(4) The Chief shall maintain a record for each request the Establishment receives for technical or operational assistance from a federal law enforcement or security agency.

Contents of record

(5) Each record must specify

(a) the name of the requesting agency;

(b) the date and time the request was received;

(d) the legal authority that permits the requesting agency to intercept or acquire the information, record, document or thing that is sought;

(e) any conditions or terms that govern the collection, use, retention, or further disclosure of the communications or information;

(f) the manner in which the Establishment responded to the request;

(g) the date or dates on which the Establishment responded to the request;

(h) the nature and duration of any technical and operational assistance provided by the Establishment;

(i) the date of destruction of any communications or information obtained as a result of the request; and

(j) the rules established by the Minister governing the Establishment's retention, use and disclosure of any information, record, document or thing that it has obtained in response to a request for assistance.

6. (1) Subsections 273.65(1) to (5) of the Act are replaced by the following:

Application for interception order — foreign intelligence

273.65 (1) The Minister may, for the sole purpose of obtaining foreign intelligence, apply to the Court for an order authorizing the Communications Security Establishment to intercept or acquire communications if there is a reasonable expectation that such interception or acquisition would result in the collection of protected information.

Requirements of application

(2) An application under subsection (1) must identify the person, persons or classes of persons whose communications are proposed to be intercepted or acquired and establish by sworn evidence that

(a) the interception or acquisition will be directed at foreign entities located outside Canada;

(b) the information to be obtained could not reasonably be obtained by other means;

(c) the expected foreign intelligence value of the information that would be derived from the interception or acquisition justifies it; and

(d) satisfactory measures are in place to protect the privacy of Canadians and to ensure that communications containing protected information will only be used or retained if they are essential to international affairs, defence or security.

Application for interception order —communications security

(3) The Minister may, for the sole purpose of protecting the computer systems or networks of the Government of Canada from mischief, unauthorized use or interference, in the circumstances specified in paragraph 184(2)(c) of the Criminal Code, apply to the Court for an order authorizing the Communications Security Establishment to intercept or acquire communications if there is a reasonable expectation that such interception or acquisition would result in the collection of protected information.

Requirements of application

(4) An application under subsection (3) must identify the person, persons or classes of persons whose communications are proposed to be intercepted or acquired and establish by sworn evidence that

(a) the interception or acquisition is necessary to identify, isolate or prevent harm to Government of Canada computer systems or networks;

(b) the information to be obtained could not reasonably be obtained by other means;

(d) satisfactory measures are in place to ensure that only information that is essential to identify, isolate or prevent harm to Government of Canada computer systems or networks will be used or retained; and

(e) satisfactory measures are in place to protect the privacy of Canadians in the use or retention of that information.

Authorization order

(5) The Court may issue an order authorizing the interception or acquisition of communications under this section, subject to the terms that the Court deems necessary and the following restrictions:

(a) the order must specify the period of time during which the authorized method of interception or acquisition may be carried out, up to a maximum period of 120 days;

(b) the order must provide that the authorized method of interception or acquisition may not be directed at the protected information of Canadians or persons in Canada; and

(c) before issuing the order, the Court must be satisfied that adequate measures are in place to protect the privacy of Canadians and persons in Canada whose protected information may be obtained as an incidental result of the use of the authorized method of interception or acquisition.

Renewal of order

(5.1) If an order made under this section has expired or is about to expire, the Minister may apply to the Court to renew the order for a further period. Subsection (2) or (4), as the case may be, and subsection (5) apply in respect of any such application.

(2) Subsection 273.65(7) of the Act is replaced by the following:

Directions not statutory instruments

(7) Directions issued under subsection (6) are not statutory instruments within the meaning of the Statutory Instruments Act.

7. The Act is amended by adding the following after section 273.65:

Procedure on application

273.651 (1) An application for an order under subsection 273.65(1) or (3) must be heard in camera by a single judge of the Court on an ex parte basis.

Special advocate must be present

(2) Subject to subsection (3), a judge may not proceed with a hearing relating to an application under subsection 273.65(1) or (3) unless a special advocate is present.

Exception

(3) If a judge determines that the application in question does not raise any significant new legal issues, he or she may proceed with the hearing without a special advocate being present.

Direction to Chief

273.652 If an order is issued under subsection 273.65(5) that authorizes the interception of communications, the Minister may direct the Chief of the Communications Security Establishment to intercept communications in accord-ance with the terms of the order.

Retention of obtained information

273.653 (1) Subject to subsection (2), the Chief of the Communications Security Establishment shall destroy any information obtained in accordance with a direction under section 273.652 as soon as practicable — at the latest within 90 days after the date on which the information was obtained — if that information pertains to, is associated with or is capable of being linked to a Canadian or a person in Canada.

Certificate

(2) Subsection (1) does not apply if the Chief has, within the 90-day period, submitted to the Minister a certificate demonstrating that it is necessary to retain the information in question because it is essential to international affairs, defence or security.

Notification of Chief

(3) Within 60 days after receiving the certificate, the Minister shall notify the Chief in writing as to whether he or she has approved or refused the certificate in whole or in part.

Approval of certificate

(4) The Minister may approve the certificate in whole or in part if he or she determines that the retention of the information in question is essential to international affairs, defence or security.

Retention, use or disclosure of information

(5) If the Minister approves the certificate in whole or in part, the information in question

(a) may be retained by the Establishment for the period specified in the approval, to a maximum of one year from the date of the approval; and

(b) may be used or disclosed by the Establishment as specified in the approval.

Variance and renewal of certificate

(6) The Minister may vary the terms of an approval, as he or she considers necessary, and may renew the approval in whole or in part for further one-year periods if he or she determines that the requirements of subsection (4) continue to be met.

Notification regarding variance or renewal

(7) The Minister shall immediately inform the Chief in writing of any variance or renewal of an approval.

Duty to maintain copies

(8) The Chief shall maintain a copy of

(a) each certificate submitted to the Minister under subsection (2);

(b) each approval, refusal or modification of a certificate by the Minister.

8. Section 273.66 of the Act is replaced by the following:

Limits on activities

273.66 The Communications Security Establishment may only undertake activities that are within its mandate and consistent with ministe-rial direction, including a direction made under section 273.652.

9. Sections 273.68 and 273.69 of the Act are replaced by the following:

Exclusion of Part VI ofCriminal Code

273.69 Part VI of the Criminal Code does not apply in relation to an interception or acquisition of a communication under the authority of an authorization issued or renewed under section 273.65 or in relation to a communication so intercepted or acquired.

10. Paragraph 273.7(a) of the Act is replaced by the following:

(a) the use or disclosure under this Part of any communication intercepted under the authority of a direction made under section 273.652; or

11. The Act is amended by adding the following after section 273.7:

Special advocate

273.71 (1) The Governor in Council may, in accordance with regulations made by the Governor in Council, appoint a special advocate for the purposes of section 273.651.

Mandate

(2) The mandate of the special advocate is

(a) to appear at hearings at which an application under subsection 273.65(1) or (3) is being considered by the Court in order to assist the Court in testing the legal and factual basis of the application;

(b) to inform the Court of any concerns that he or she might have in respect of an application made under subsection 273.65(1) or (3); and

Requirement to publish

273.72 (1) Subject to subsection (2), the Court shall publish any written reasons for the decision taken by the Court in relation to an application made under subsection 273.65(1) or (3).

When publication not required

(2) If, in the opinion of a judge of the Court, it would be against the public interest to publish written reasons — or any portion of such reasons — in a particular case, the Court is not required to do so.

PART 2

AN ACT TO ESTABLISH THE INTELLIGENCE AND SECURITY COMMITTEE OF PARLIAMENT

Enactment of Act

Enactment

12. The Intelligence and Security Committee of Parliament Act is enacted as follows:

An Act to establish the Intelligence and Security Committee of Parliament

SHORT TITLE

Short title

1. This Act may be cited as the Intelligence and Security Committee of Parliament Act.

INTERPRETATION

Definition of “Committee”

2. In this Act, “Committee” means the Intelligence and Security Committee of Parliament established by section 3.

COMMITTEE, MEMBERS AND STAFF

Committee established

3. (1) There is established a committee, to be known as the Intelligence and Security Committee of Parliament, which is to be composed of three members of the Senate and six members of the House of Commons, none of whom are ministers of the Crown or parliamentary secretaries.

Restriction on membership

(2) No more than four members of the Committee may be members of the same political party.

Not a Committee of Parliament

(3) The Committee is not a committee of either House of Parliament or of both Houses.

Appointment of members

4. (1) Members of the Committee must be appointed by the Governor in Council and hold office during pleasure until the dissolution of Parliament following their appointment.

Opposition members

(2) A member of either House belonging to an opposition party recognized in that House may only be appointed as a member of the Committee after consultation with the leader of that party.

Approval

(3) A member of either House may only be appointed as a member of the Committee after approval of the appointment by resolution of that House.

Ceasing to be member

(4) A member of the Committee ceases to be a member on appointment as a minister of the Crown or parliamentary secretary or on ceasing to be a member of the Senate or of the House of Commons.

Designation of Chair

5. (1) The Chair of the Committee must be elected by the members of the Committee.

Absence

(2) The Chair may designate one of the other members to act as Chair in his or her absence for a period not exceeding 45 days.

Voting

(3) The Chair or acting Chair may vote at meetings of the Committee and, in the case of equality of votes, also has a deciding vote.

Procedure

6. Subject to this Act, the Committee may determine the procedure to be followed in the performance of any of its duties or functions.

Staff

7. The Committee may engage a secretary and any other staff that it requires, and may fix and pay the remuneration and expenses of that staff.

Service without remuneration

8. (1) Members of the Committee are not to be remunerated for their services in connection with the work of the Committee.

Reimbursement of expenses

(2) Members of the Committee are entitled to be reimbursed, in accordance with directives of the Treasury Board, for expenses incurred by them in connection with the work of the Committee while they are absent

(a) from the National Capital Region, as described in the schedule to the National Capital Act, on days that the Senate or the House of Commons, as the case may be, is sitting; or

(b) from their ordinary place of residence at any other time.

Eligibility to remain in Commons

9. Despite section 32 of the Parliament of Canada Act, no member of the Committee is ineligible to be a member of the House of Commons or to sit or vote in that House by reason of the reimbursement of expenses under subsection 8(2).

Estimates

10. The Chair of the Committee must annually cause to be prepared an estimate of the sums that will be required to be provided by Parliament for the payment of the salaries, allowances and expenses of the Committee during the next ensuing fiscal year, and must transmit that estimate to the President of the Treasury Board, who must lay it before the House of Commons with the estimates of the government for the fiscal year.

SECURITY AND CONFIDENTIALITY

Oath of office

11. Every member of the Committee and every person engaged by it must, before commencing the duties of office, take an oath in the form set out in the schedule to this Act, and must comply with the oath both during and after their term of appointment or employment.

Security of Information Act

12. For the purposes of the Security of Information Act, every member of the Committee and every person engaged by it is a person permanently bound to secrecy.

Parliamentary privilege

13. Despite any other Act of Parliament, members of the Committee may not claim immunity based on parliamentary privilege for the use or communication of information that comes into their possession or knowledge in their capacity as members of the Committee.

Meetings in camera

14. Meetings of the Committee must be held in camera whenever the Chair, or a majority of members present, considers it necessary for the Committee to do so.

MANDATE OF THE COMMITTEE

Mandate

15. The mandate of the Committee is to

(a) review the legislative, regulatory, policy and administrative framework for intelligence and national security in Canada;

(b) review the activities of federal departments and agencies in relation to intelligence and national security; and

POWERS OF THE COMMITTEE

Powers

16. The Committee has the power to summon before it any witnesses, and to require them to

(a) give evidence orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters, on solemn affirmation; and

(b) produce any documents and things that the Committee deems requisite for the performance of its duties and functions.

Access to information

17. (1) Despite any other Act of Parliament or any privilege under the law of evidence, but subject to subsection (2), the Committee is entitled to have access to any information under the control of federal departments and agencies that relates to the performance of the duties and functions of the Committee and to receive from their employees any information, reports and explanations that the Committee deems necessary for the performance of its duties and functions.

Prohibition against withholding information

(2) No information described in subsection (1), other than a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, may be withheld from the Committee on any grounds.

REPORT

Annual report

18. (1) The Committee must submit an annual report to the Prime Minister on reviews conducted by the Committee under section 15 during the year.

Detailed account of Committee's activities

(2) The report must include a sufficiently detailed account of the Committee's activities, findings and recommendations so as to meaningfully inform Parliament and the public on matters identified by the Committee as being of particular public interest, subject only to those exclusions that are necessary to protect the confidentiality of information related to matters of international affairs, defence or security.

Information excluded

(3) The Prime Minister may, after the Chair of the Committee has been consulted, exclude from the copy of the report that is to be laid before each House of Parliament under subsection (4) any information the disclosure of which would, in the Prime Minister’s opinion, be injurious to international affairs, defence or security.

Tabling in Parliament

(4) The Prime Minister must cause a copy of the report to be laid before each House of Parliament within the first 45 days on which that House is sitting after the Prime Minister receives the report.

Statement regarding exclusion

(5) The copy of the report laid before each House of Parliament under subsection (4) must state whether any information has been excluded from it pursuant to subsection (3).

Disclosure of information

(6) The Chair of the Committee may disclose to the public the general nature of any information that has been excluded from the report by the Prime Minister under subsection (3) as long as the disclosure does not reveal the substance of the excluded information.

CONSEQUENTIAL AMENDMENTS

R.S., c. O-5; 2001, c. 41, s. 25

Security of Information Act

13. Section 12 of the Security of Information Act is amended by adding the following after subsection (1):

Certificate

(1.1) Subject to subsection (2), a certificate purporting to have been issued by or under the authority of the President of the Queen’s Privy Council for Canada stating that a person is a member or employee or former member or former employee of the Intelligence and Secu-rity Committee of Parliament — and, as such, is a person permanently bound to secrecy by virtue of section 12 of the Intelligence and Security Committee of Parliament Act — shall be received and is admissible in evidence in any proceedings for an offence under section 13 or 14, without proof of the signature or authority of the President, and, in the absence of evidence to the contrary, is proof of the fact so stated.

2006, c. 9, s. 2

Conflict of Interest Act

14. The definition “public office holder” in subsection 2(1) of the Conflict of Interest Act is amended by striking out “and” at the end of subparagraph (d)(v), by adding “and” at the end of subparagraph (d)(vi) and by adding the following after subparagraph (d)(vi):

(vii) a member of the Intelligence and Security Committee of Parliament established by section 3 of the Intelligence and Security Committee of Parliament Act;

COMING INTO FORCE

Coming into force

15. This Act comes into force one year after the day on which it receives royal assent or on any earlier day that may be fixed by order of the Governor in Council.