Parliamentary Committee Notes: BILL C-70 An Act respecting countering foreign interference - Clause by Clause Analysis

May 2024

Short title

Clause 1 – Short Title

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None

Proposal

Short Title

1 This Act may be cited as the Countering Foreign Interference Act.

Context

Analysis

The short title clearly describes the purpose and intent for which the Act was introduced, namely to counter foreign interference.

Part 1: Canadian Security Intelligence Service Act

Clause 2 – Heading Before Section 2 of the CSIS Act

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Définitions

Proposal

The heading before section 2 of the French version of the Canadian Security Intelligence Service Act is replaced by the following:

Définitions et interpretation

Context

Analysis

The proposed short title in French would more clearly align with the English heading, “Interpretation” and the overall purpose of section 2 of the Act.

Clause 3 – Section 2 Of the CSIS Act: Definitions Previous

Definitions

In this Act,

…

Canadian in respect of a dataset, 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)

…

dataset means a collection of information stored as an electronic record and characterized by a common subject matter; (ensemble de données)

…

exploitation means a computational analysis of one or more datasets for the purpose of obtaining intelligence that would not otherwise be apparent; (exploitation)

…

query means a specific search, with respect to a person or entity, of one or more datasets, for the purpose of obtaining intelligence; (interrogation)

…

Proposal

The definitions Canadian, dataset, exploitation and query in section 2 of the Act are repealed.

Context

Analysis

By repealing the definitions of “Canadian,” “dataset,” “exploitation” and “query” from section 2 of the Act, these amendments would help clarify that the dataset authority is an ancillary collection authority. This means that sections 11.01 to 11.25 only apply to information that cannot be collected or that was collected but cannot be retained under any of sections 12 to 16 of the CSIS Act.

Clause 4 – Section 2.1 of the CSIS Act: Forms

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None

Proposal

The Act is amended by adding the following after section 2:

Forms

2.1 If this Act requires that a form be used, the form may incorporate any variations that the circumstances require.

Context

Analysis

The Criminal Code has forms to facilitate the request and issuance of certain orders that may be considered to be more routine, such as preservation and production orders. Clause 37 would add a preservation order and production order to the CSIS Act. In line with the Criminal Code, the proposed preservation and production order authorities would require that a specific form be used by CSIS when seeking such an order from a judge of the Federal Court and by the Court to issue the order. This clause would ensure that the forms are flexible and can be adapted to particular requests or orders.

Clause 5(1) – Section 7(2) of the CSIS Act: Consultation with the Deputy Minister

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Consultation with Deputy Minister

7(1) The Director shall consult the Deputy Minister on

  1. the general operational policies of the Service; and
  2. any matter with respect to which consultation is required by directions issued under subsection 6(2).

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.

Consultation with Deputy Minister — authorization

(2.1) The Director or any employee who is designated under subsection 11.04(1) for the purpose of applying for a judicial authorization referred to in section 11.12 shall consult the Deputy Minister before applying for the judicial authorization.

Advice by Deputy Minister

(3) The Deputy Minister shall advise the Minister with respect to directions issued under subsection 6(2) or that should, in the opinion of the Deputy Minister, be issued under that subsection.

Proposal

5(1) 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, 22.21 or 23 shall consult the Deputy Minister before applying for the warrant or, if applicable, the renewal of the warrant.

Section 7 of the Act is amended by adding the following after subsection (2.1):

Consultation with Deputy Minister — production order

(2.2) The Director or any employee who is designated by the Minister for the purpose of applying for a production order under section 20.4 shall consult the Deputy Minister before applying for the order.

Context

Analysis

Deputy Minister consultation is already required prior to applying for judicial authorizations to retain Canadian datasets, intelligence collection warrants, threat reduction warrants, and removal warrants, as defined in section 11.13, 21, 21.1, and 23 of the Act, respectively. This clause would simply extend this requirement to the new production order and the new warrant authority proposed in clauses 37 and 39, respectively.

Clause 6 – Section 10 of the CSIS Act: Oaths Previous

Oaths

10 The Director and every employee shall, before commencing the duties of office, take an oath of allegiance and the oaths set out in the schedule.

Proposal

6 Section 10 of the Act is replaced by the following:

Oaths

10 The Director and every employee shall, before commencing the duties of office, take an oath of allegiance and the oaths set out in Schedule 1.

Context

Section 10 of the CSIS Act already sets out that the Director and every employee of CSIS must take an oath of allegiance before commencing the duties of office. This oath has been set out in a schedule that has formed part of the Act since its enactment in 1984. Due to the proposed amendments set out in clauses 37 and 46, the CSIS Act will now contain more than one schedule. Accordingly, clause 6 would amend section 10 of the Act to specify that the oath would be in Schedule 1 of the CSIS Act.

Analysis

This change would number the existing Schedule of the Act as Schedule 1, for specificity and ease of reference as the Act would now contain more than one schedule.

Clause 7 – Marginal Note Before Section 11.01 of the CSIS Act: Datasets

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None

Proposal

The Act is amended by adding the following before section 11.01:

Datasets

Context

Analysis

The purpose of this amendment is to more clearly delineate the sections of the CSIS Act that apply to the dataset authority, namely sections 11.01 to 11.25 of the Act.

Clause 8 – Section 11.01 of the CSIS: Definitions

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Definitions

The following definitions apply in sections 11.01 to 11.25.

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foreign dataset means a dataset described in paragraph 11.07(1)(c). (ensemble de données étranger)

Proposal

Section 11.01 of the Act is amended by adding the following in alphabetical order:

Canadian in respect of a person, means a Canadian citizen, a permanent resident within the meaning of 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)

dataset means a collection of information that

  1. is characterized by a common subject matter;
  2. is stored as an electronic record;
  3. contains personal information, as defined in section 3 of the Privacy Act; and
  4. is relevant to the performance of the Service’s duties and functions under any of sections 12 to 16 but cannot be collected or retained under any of those sections. (ensemble de données)

exploitation means a computational analysis or series of computational analyses that is performed on one or more collections of information for the purpose of obtaining intelligence that would not otherwise be apparent. (exploitation)

query means a specific search or series of specific searches, with respect to a person or entity, that is performed on one or more collections of information for the purpose of obtaining intelligence. (interrogation)

Context

Analysis

These changes would help clarify that the terms “Canadian,” “dataset,” “exploitation,” and “query,” which are only relevant to the dataset authority at sections 11.01 to 11.25 of the Act, apply solely to sections 11.01 to 11.25, and not the entire CSIS Act.

The dataset authority at sections 11.01 to 11.25 of the CSIS Act was enacted by Parliament as an ancillary collection authority with its own criteria, intended to assist CSIS in the performance of its duties and functions under sections 12 to 16 of the Act. However, the scope of application of the dataset authority lacks clarity and has the potential to diminish the scope of what CSIS can collect under sections 12 to 16 of the Act. The proposed definition of “dataset” would clarify that the dataset authority does not apply to information to which sections 12 to 16 apply. Rather the dataset authority applies when the information is relevant to sections 12 to 16 but cannot be collected or was collected but cannot be retained under them. This definition would eliminate the need for s. 11.02, which sets out the types of information to which the dataset authority applies, and which would be repealed by clause 9. It would also eliminate the need for subsection 11.05(1), which refers to datasets being relevant to sections 12 to 16, and which would be repealed by clause 11. The proposed definition section brings these linked concepts into one place, to ease readability and support clear application of the dataset authority.

Clause 9 – Section 11.02 of the CSIS Act: Application Previous

Application

Sections 11.01 to 11.25 apply to every dataset that contains personal information, as defined in section 3 of the Privacy Act, that does not directly and immediately relate to activities that represent a threat to the security of Canada.

Proposal

Section 11.02 of the Act is repealed.

None. This clause would repeal section 11.02 of the CSIS Act.

Context

Analysis

The proposed definition of “dataset” in clause 8 includes the concept of “personal information”, which is an element of section 11.02. The proposed definition also clarifies the dataset authority is an ancillary collection authority that is intended to apply to information that cannot be collected or that was collected but cannot be retained under any of sections 12 to 16 of the CSIS Act. The proposed definition would therefore clarify the types of information to which the dataset authority applies and eliminate the need for section 11.02.

Clause 10 – Section 11.03 of the CSIS Act: Classes – Canadian Datasets

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Classes — Canadian datasets

11.03(1) At least once every year, the Minister shall, by order, determine classes of Canadian datasets for which collection is authorized.

Criteria

(2) The Minister may determine that a class of Canadian datasets is authorized to be collected if the Minister concludes that the querying or exploitation of any dataset in the class could lead to results that are relevant to the performance of the Service’s duties and functions set out under sections 12, 12.1 and 16.

…

Proposal

Subsections 11.03(1) and (2) of the Act are replaced by the following:

Classes — Canadian datasets

11.03 (1) The Minister shall, by order, determine classes of Canadian datasets for which collection is authorized.

Criteria

(2) The Minister may determine that a class of Canadian datasets is authorized to be collected if the Minister concludes that the querying or exploitation of datasets in the class could lead to results that are relevant to the performance of the Service’s duties and functions under section 12, 12.1, 15 or 16.

Maximum period

(2.1) An order under subsection (1) is valid for a period of not more than two years.

Context

Analysis

The ministerial determination of classes of Canadian datasets provides a first layer of accountability for the types or categories (“classes”) of datasets that CSIS may collect that include the personal information of Canadians.

Classes of Canadian datasets are currently valid for up to one year. The types of information that may assist CSIS in fulfilling its duties and functions under sections 12 to 16 of the CSIS Act are unlikely to change on a yearly basis and continue to be useful over time. The proposed subsection 11.03(2.1) would increase the maximum duration of the Minister’s determination of classes from one (1) to two (2) years, while maintaining accountability for the types of Canadian datasets CSIS can collect. The alignment of the English and French text clarifies the intent of the provision, which is for the making of determinations to be mandatory.

Subsection 11.03(2) could be interpreted to mean that the query and exploitation of every possible dataset, without exception, in a class must lead to results that are relevant to the performance of CSIS’ duties or functions. This would be impossible, as the nature of every possible dataset that could fall within an approved class cannot be determined. There always remains a possibility that datasets within a class will not necessarily be relevant, due to their unique characteristics. The proposed amendments would therefore clarify that the standard is not every possible dataset, but that the class describes datasets that could lead to results that are relevant to the performance of CSIS’ duties. After collection, the relevance of individual datasets would continue to be validated during the process for seeking judicial authorization to retain, where the Federal Court must be satisfied that the dataset is “likely to assist” the Service in the performance of its duties and functions (Clause 19, section 11.13).

In addition, the amendments to subsection 11.03(1) would clarify that a dataset does not need to be relevant to every duty and function under sections 12 to 16 of the CSIS Act. Rather, collection and retention can be authorized so long as the dataset is relevant to one of those duties and functions. Similar amendments are made throughout the dataset authority.

Lastly, the amendments to subsection 11.03(2) would also help give effect to the amendments proposed by clause 23 as they would allow the Minister to determine a class if querying or exploiting datasets in the class could lead to results that are relevant to the performance of the CSIS’ duties and functions under section 15.

Clause 11 – Section 11.05 of the CSIS Act: Collection of Datasets Previous

Collection of datasets

11.05 (1) Subject to subsection (2), the Service may collect a dataset if it is satisfied that the dataset is relevant to the performance of its duties and functions under sections 12 to 16.

Limit

(2) The Service may collect a dataset only if it reasonably believes that the dataset

  1. is a publicly available dataset;
  2. belongs to an approved class; or
  3. predominantly relates to non-Canadians who are outside Canada.

Proposal

Section 11.05 of the Act is replaced by the following:

Collection of datasets

11.05 The Service may collect a dataset only if it reasonably believes that the dataset

  1. is a publicly available dataset;
  2. belongs to an approved class; or
  3. predominantly relates to non-Canadians who are outside Canada.

Collection under section 12, 15 or 16

11.51 If the Service concludes that information that was collected under section 12, 15 or 16 constitutes a dataset or could be used to constitute a dataset, that information is deemed to have been collected as a dataset under section 11.05 on the day on which the Service reached that conclusion.

Collection outside Canada

11.51 (1) As soon as feasible after collecting a dataset under section 11.05 outside Canada, the Service shall either destroy the dataset or provide it to a designated employee for the purposes of section 11.07.

Deemed collection date

(2) A dataset that is provided to a designated employee under subsection (1) is, for the purposes of section 11.07, deemed to have been collected on the day on which it is provided to the designated employee.

Collection in execution of warrant or production order

11.51 (1) If the Service concludes that information that was incidentally collected in the execution of a warrant issued under section 21 or 22.21 or a production order issued under section 20.4 constitutes a dataset or could be used to constitute a dataset, that information is deemed to have been collected as a dataset under section 11.05 on the day on which the Service reached that conclusion.

Terms and conditions

(2) The terms and conditions of the warrant or production order continue to apply to the dataset.

Deemed collection date

11.51 If a dataset is deemed to have been collected on more than one day under section 11.051,

11.052 or 11.053 or subsection 11.1(3), the dataset is deemed, for the purposes of section 11.07, to have been collected on the latest of those days.

Context

Analysis

By repealing subsection 11.05(1) and incorporating its elements into the new definition of “datasets” that would be introduced by clause 8 (section 11.01 of the Act), this amendment helps clarify the types of information covered by the dataset authority. By extension, it also helps

clarify that the dataset authority is an ancillary collection to CSIS’ duties and functions under sections 12 to 16 of the CSIS Act.

Proposed sections 11.051 to 11.053 are intended to clarify, for the purposes of the statutory evaluation period, the collection date of information under the dataset authority in different situations such as when the information is initially collected under sections 12, 15 or 16, abroad or under warrant.

Proposed section 11.054 is intended to address the unique circumstance where more than one of the deemed collection dates set out in proposed sections 11.051 to 11.053 or subsection 11.1(3) applies. Specifically, should this case arise, this provision clarifies the evaluation period would start on the later of the deemed collection dates.

Clause 12 – Section 11.06 of the CSIS Act: Designation of Employees – Director

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Designation of employees — Director

11.06 (1) The Director may designate employees to carry out one or more activities referred to in sections 11.07, 11.2 and 11.22.

Statutory Instruments Act

(2) For greater certainty, the designation of an employee by the Director under subsection (1) is not a statutory instrument within the meaning of the Statutory Instruments Act.

Proposal

Section 11.06 of the Act is amended by adding the following after subsection (1):

Delegation

(1.1) The Director may delegate the designation power set out in subsection (1) to an employee.

Subsection 11.06(2) of the English version of the Act is replaced by the following:

Statutory Instruments Act

(2) For greater certainty, the designation of an employee under subsection (1) is not a statutory instrument within the meaning of the Statutory Instruments Act.

Context

Analysis

Although this clause would allow the Director to delegate the power to designate, datasets are nonetheless subject to strict protections such as those set out in section 11.24(3)(c) of the Act.

Clause 13 – Section 11.07 of the CSIS Act: Evaluation Period – Datasets

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Evaluation period — datasets

11.07 (1) If the Service collects a dataset under subsection 11.05(1), a designated employee shall, as soon as feasible but no later than the 90th day after the day on which the dataset was collected, evaluate the dataset and confirm if it

  1. was publicly available at the time of collection;
  2. predominantly relates to individuals within Canada or Canadians; or
  3. predominantly relates to individuals who are not Canadians and who are outside Canada or corporations that were not incorporated or continued under the laws of Canada and who are outside Canada.

Evaluation — class

(2) In the case of a dataset referred to in paragraph (1)(b), a designated employee shall evaluate the dataset and confirm whether it belongs to an approved class and, if it does not, he or she shall take the measures set out in section 11.08.

Limit

(3) During the evaluation period referred to in subsection (1) and any period of suspension under subsection 11.08(2), a dataset shall not be queried or exploited.

…

Responsibilities of designated employee

(6) A designated employee shall, during the evaluation period,

  1. delete any information that relates to personal information, as defined in section 3 of the Privacy Act, that in the opinion of the Service is not relevant to the performance of its duties and functions and may be deleted without affecting the integrity of the dataset; and
  2. comply with the obligations under section 11.1.

Proposal

The portion of subsection 11.07(1) of the Act before paragraph (a) is replaced by the following:

Evaluation period — datasets

11.07 (1) If the Service collects a dataset under section 11.05, a designated employee shall, as soon as feasible but no later than the 180th day after the day on which the dataset was collected, evaluate the dataset and confirm if it

Subsection 11.07(2) of the Act is replaced by the following:

Deeming

(1.1) If a dataset that is confirmed to be a foreign dataset includes information that relates to individuals within Canada or Canadians and the Service decides to treat it as a Canadian dataset, that dataset is deemed to be a Canadian dataset.

Evaluation — class

(2) In the case of a Canadian dataset, a designated employee shall evaluate the dataset and confirm whether it belonged to an approved class on the day on which it was collected and, if it did not, the designated employee shall take the measures set out in section 11.08.

Section 11.07 of the Act is amended by adding the following after subsection (3):

Comparison

(3.1) A designated employee may, for the purpose of determining whether it is necessary to make an application for a judicial authorization under subsection 11.13(1) or a request for an authorization under subsection 11.17(1), compare the dataset to other datasets that have been collected by the Service under this Act.

Paragraph 11.07(6)(a) of the Act is replaced by the following:

  1. delete personal information, as defined in section 3 of the Privacy Act, that in the opinion of the Service is not relevant to the performance of its duties and functions and may be deleted without affecting the integrity of the dataset; and

Context

Analysis

Datasets can be encrypted, in a foreign language, and unstructured. During the current 90-day evaluation period, CSIS must translate, decrypt, apply privacy protections, and organize the data. If it is a foreign dataset, CSIS must also remove any record (information) that by its nature or attributes relates to a Canadian or person in Canada and either delete them, collect them as a separate Canadian dataset, or add them to another Canadian dataset if permitted by a valid judicial authorization. Within the same 90-days, CSIS must also prepare and submit the requisite application for retention – ministerial (for foreign datasets) or judicial (for Canadian datasets) authorization. If CSIS is unable to complete the requisite tasks during the 90-day evaluation, it must destroy the dataset. A longer evaluation period of 180 days, as proposed in sub-clause 13(1), would provide CSIS more time to conduct these steps and would allow for a more comprehensive evaluation before applying for authorization to retain the dataset.

The proposed amendments in sub-clause 13(2) would, among other things, introduce a mechanism at subsection 11.07(1.1) for CSIS to opt to treat a foreign dataset that contains information about Canadians or people in Canada as a single Canadian dataset. Removing Canadian records from a foreign dataset may create unnecessary duplication. For CSIS to retain the totality of a foreign dataset that contains Canadian records, it must separate the Canadian and

foreign records, and apply for two separate authorizations – one to the Minister and Intelligence Commissioner (for the foreign portion of the dataset) and one to the Minister and the Federal Court (for the Canadian portion of the dataset). This amendment would permit CSIS to instead treat the whole dataset as Canadian dataset. Canadian datasets have the most robust protections and are subject to a shorter maximum retention.

The proposed amendments at sub-clause 13(2) are intended to clarify that a Canadian dataset must belong to an approved class at the point of collection, and not after. This would allow CSIS to continue evaluating a Canadian dataset and making an application to retain in situations where the corresponding class expires after collection. The other proposed amendments to subsection 11.07(2) are stylistic to help simplify the provision.

Due to volume and complexity of some datasets, it may be difficult at collection or throughout the evaluation period for CSIS to ascertain whether a dataset has been previously collected. The dataset authority can be interpreted as prohibiting CSIS from comparing newly collected datasets to datasets that were previously collected but that are not yet subject to an authorization to retain. This can cause duplication in efforts as CSIS may evaluate and seek to retain a newly collected dataset, which may have already been collected. The new subsection 11.07(3.1) proposed by sub- clause 13(3) would address this situation by enabling CSIS to compare the contents of a dataset being evaluated to other datasets, regardless of whether their retention has been authorized. This would better enable CSIS to decide whether to make an application to retain newly collected datasets.

The other proposed amendments in sub-clause 13(1) and sub-clause 13(4), bring coherence between subsection 11.07(1) and the proposed amendment to section 11.05 in clause 11 and to align the English and French text at paragraph 11.07(6)(a), respectively.

Clause 14 – Section 11.08 of the CSIS Act: Datasets Not Within Class

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Dataset not within class

11.08 (1) If a designated employee confirms that the dataset does not belong to any approved class, the Service shall, without delay,

  1. destroy the dataset; or
  2. make a request to the Minister for the determination of a new class under section 11.03 to which the dataset would belong.

Period — suspension

(2) When the Service makes a request to the Minister under paragraph (1)(b), the 90-day period referred to in subsection 11.07(1) is suspended for the period that begins on the day on which a designated employee confirms that the dataset does not belong to any approved class and ends on the day on which the Commissioner approves, under the Intelligence Commissioner Act, the determination of the Minister in respect of a new class to which the dataset belongs.

Proposal

The portion of subsection 11.08(1) of the Act before paragraph (a) is replaced by the following:

Dataset not within class

11.08 (1) If a designated employee confirms that the dataset did not belong to an approved class on the day on which it was collected, the Service shall, without delay,

Subsection 11.08(2) of the Act is replaced by the following:

Period — suspension

(2) If the Service makes a request to the Minister under paragraph (1)(b), the 180-day period referred to in subsection 11.07(1) is suspended for the period that begins on the day on which a designated employee confirms that the dataset did not belong to an approved class on the day on which it was collected and ends on the day on which the Commissioner approves, under the Intelligence Commissioner Act, the determination of the Minister in respect of a new class to which the dataset belongs.

Context

Analysis

The Ministerial determination of classes of Canadian datasets provides a first layer of accountability for the types of datasets that CSIS may collect involving the personal information of Canadians under the framework.

The proposed amendments at sub-clause 14(1) are intended to clarify that a Canadian dataset must belong to an approved class at the point of collection, and not after, bring this provision in line with the amendments made to subsection 11.07(2) of the CSIS Act by sub-clause 13(2).

The proposed amendments in sub-clause14(2) would help give effect to the proposed amendments made to subsection 11.07(2) of the CSIS Act by sub-clause 13(2), which would extend the evaluation period from 90 to 180 days. A longer evaluation period of 180 days, would provide CSIS more time to conduct to evaluate the dataset and allow for a more comprehensive evaluation before applying to retain the dataset. The proposed amendments in sub-clause 14(2) are similar to amendments proposed at sub-clause 13(2), and are intended to clarify that a Canadian dataset must belong to an approved class at the point of collection, and not after.

Clause 15 – Section 11.09 of the CSIS Act: End of Evaluation Period

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End of evaluation period — Canadian datasets

11.09 (1) If a designated employee confirms that a dataset is a Canadian dataset, the Service shall make an application for judicial authorization under section 11.13, as soon as feasible but no later than the 90th day referred to in subsection 11.07(1).

End of evaluation period — foreign datasets

(2) If the designated employee confirms that the dataset is a foreign dataset, the Service shall ensure that the dataset is brought to the attention of the Minister or the designated person, as soon as feasible but no later than the 90th day referred to in subsection 11.07(1), so as to enable the Minister or designated person to make a determination to authorize its retention under section 11.17.

Destruction

(3) If the Service has not taken steps within the period referred to in subsection (1) or (2), as the case may be, the dataset shall be destroyed by the day on which the period ends.

Proposal

Subsections 11.09(1) and (2) of the Act are replaced by the following:

End of evaluation period — Canadian datasets

11.09 (1) If a designated employee confirms that a dataset is a Canadian dataset or if a dataset is deemed to be a Canadian dataset under subsection 11.07(1.1), the Service shall make an application for judicial authorization under section 11.13 as soon as feasible but no later than the 180th day referred to in subsection 11.07(1).

End of evaluation period — foreign datasets

(2) If the designated employee confirms that a dataset is a foreign dataset, the Service shall ensure that the dataset is brought to the attention of the Minister or the designated person, as soon as feasible but no later than the 180th day referred to in subsection 11.07(1), so as to enable the Minister or designated person to make a determination to authorize its retention under section 11.17.

Subsection 11.09(3) of the French version of the Act is replaced by the following:

Destruction

(3) À l’expiration du délai de cent quatre-vingts jours, si le Service n’a pas agi conformément aux paragraphes (1) ou (2), il est tenu de détruire l’ensemble de données recueilli.

Context

Analysis

The proposed amendments in sub-clause15(1) would help give effect to the proposed amendments made to section 11.07 of the CSIS Act by sub-clause 13(2), which would introduce a new subsection 11.07(1.1) to the Act to enable CSIS to treat foreign datasets that contain records about Canadians or people in Canada as Canadian datasets.

The proposed amendments in sub-clauses 15(1) and (2) would also help give effect to the proposed amendments made to subsection 11.07(2) of the CSIS Act by sub-clause 13(2), which would extend the evaluation period from 90 to 180 days.

Clause 16 – Section 11.1 of the CSIS Act: Continuing Obligations of Service

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Continuing obligations of Service

11.1 (1) The Service shall,

  1. in respect of a Canadian dataset or a foreign dataset, delete any information in respect of which there is a reasonable expectation of privacy that relates to the physical or mental health of an individual;
  2. in respect of a Canadian dataset, delete any information that is subject to solicitor- client privilege or the professional secrecy of advocates and notaries; and
  3. in respect of a foreign dataset, remove any information from the dataset that by its nature or attributes relates to a Canadian or a person in Canada.

Removal

Deeming

(3) The dataset collected under paragraph (2)(b) shall be deemed to have been collected on the day on which it was removed and its evaluation period under subsection 11.07(1) begins on the same day on which it was removed.

Proposal

Subsection 11.1(1) of the Act is replaced by the following:

Continuing obligations of Service

11.1 (1) The Service shall take reasonable measures to ensure that

  1. any information in respect of which there is a reasonable expectation of privacy that relates to the physical or mental health of an individual is deleted from a Canadian dataset or a foreign dataset;
  2. any information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries is deleted from a Canadian dataset; and
  3. any information that by its nature or attributes relates to a Canadian or a person in Canada is removed from a foreign dataset.

Subsection 11.1(3) of the Act is replaced by the following:

Non-application

(2.1) Subsection (2) does not apply to information that is being retained under subsection 11.21(1).

Deeming

(3) A dataset collected under paragraph (2)(b) is deemed to have been collected under section

11.05 on the day on which the information that constitutes the dataset was removed from the foreign dataset.

Context

Analysis

The continuing obligations set out in section 11.1 of the CSIS Act are one of the safeguards of the dataset authority to protect the private information of individuals. However, datasets range in size from a few entries to millions of records. Datasets can be encrypted, in a foreign language, and unstructured. Accordingly, the amendments to subsection 11.1(1) proposed by sub-clause 16(1) would clarify that the steps taken must be reasonable in the circumstances.

Subsection 11.1(2) sets out that if CSIS removes information from a foreign dataset that relates to a Canadian or person in Canada, CSIS must (a) destroy the information, (b) collect it as a dataset under section 11.05, or (c) add it as an update to a Canadian dataset if permitted by the judicial authorization. Subsection 11.1(2.1) proposed by sub-clause 16(2) is intended to clarify that when CSIS queries or exploits a dataset, and finds information about a Canadian or person in Canada, CSIS must remove the information from the dataset but can retain the information under section 11.21 if the criteria for retention are met.

The other amendments proposed by sub-clauses 16(1) and 16(2) are intended to simplify and clarify the language of subsections 11.1(1) and 11.1(3) of the Act.

Clause 17 – Section 11.11 of the CSIS Act: Datasets Publicly Available

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Dataset publicly available

11.11 (1) For the purposes of sections 12 to 16, the Service may retain, query and exploit a publicly available dataset.

Retention of results of query or exploitation

(2)The Service may retain the results of a query or exploitation of a publicly available dataset in accordance with sections 12 to 16.

Proposal

Section 11.11 of the Act is amended by adding the following after subsection (2):

Disclosure

(3) The Service may disclose a publicly available dataset and, if it does so, section 19 does not apply to the disclosure.

Context

Analysis

The provisions contained in section 11.11 of the Act can be interpreted to not authorize the disclosure of publicly available datasets to partners, even if they have the lawful authority to receive those datasets from CSIS. The proposed new subsection would provide a mechanism for CSIS to disclose these types of datasets.

CSIS’ authorities to disclose information collected under its duties and functions are found in section 19 of the CSIS Act. The authorities to disclose datasets would be severed from those in section 19 for congruence with the principle that the dataset authority in sections 11.01 to 11.25 of the Act is separate from CSIS’ duties and functions.

Clause 18 – Section 11.12 of the CSIS Act: Approval by the Minister

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Approval by Minister

11.12 (1) Before making an application for a judicial authorization under subsection 11.13(1), the Director or a designated employee shall obtain the Minister’s approval.

Approved classes

(2) When the Director or a designated employee requests the Minister’s approval, the Director or designated employee shall, indicate to the Minister

  1. the approved class to which the Canadian dataset belongs; and
  2. the date on which the Commissioner approved the determination of the Minister authorizing the class under the Intelligence Commissioner Act.

Proposal

Paragraph 11.12(2)(a) of the Act is replaced by the following:

  1. the approved class to which the Canadian dataset belongs or to which it belonged on the day on which it was collected; and

Context

Analysis

The ministerial determination of classes of Canadian datasets provides a first layer of accountability regarding the types of datasets that CSIS may collect involving the personal information of Canadians. The amendments proposed by clause 18 are intended to clarify that a Canadian dataset must belong to an approved class at the point of collection, and not after, bringing this provision in line with the proposed amendments to subsection 11.07(2) of the CSIS Act by sub-clause 13(2). The Director of CSIS or a designated employee would only be required to indicate to the Minister the class to which a dataset belongs at the time that the Minister’s approval is requested in situations where CSIS sought a new class under paragraph 11.08(1)(b) during the evaluation of the dataset.

Clause 19 – Section 11.13 of the CSIS Act: Judicial Authorization Previous

Judicial authorization

11.13 (1) A judge may authorize the retention of a Canadian dataset if he or she is satisfied that

  1. the retention of the dataset that is the subject of the application is likely to assist the Service in the performance of its duties or functions under sections 12, 12.1 and 16; and
  2. the Service has complied with its obligations under section 11.1 with respect to the dataset that is the subject of the application.

Contents of application

(2) An application for a judicial authorization shall be made in writing and shall set out the following:

  1. the grounds on which the requirements referred to in paragraphs (1)(a) and (b) are satisfied;
  2. a description of the information that is contained in the dataset;

Proposal

…

Paragraph 11.13(1)(a) of the Act is replaced by the following:

  1. the retention of the dataset that is the subject of the application is likely to assist the Service in the performance of its duties and functions under section 12, 12.1, 15 or 16; and

Subsection 11.13(2) of the Act is amended by adding the following after paragraph (b):

Context

Analysis

The Federal Court already considers whether a dataset is relevant to CSIS’ duties and functions under sections 12, 12.1, or 16 when deciding whether to authorize the retention of a Canadian dataset. The amendments to paragraph 11.13(1)(a), which would add section 15 to that list. This would help give effect to the amendments proposed in clause 23, which would allow CSIS to query and exploit Canadian datasets for purposes of section 15. The amendments proposed to paragraph 11.13(1)(a) also help clarify that a dataset needs to only be relevant to one of the duties and functions listed, not all.

There is currently no mechanism in the CSIS Act for CSIS to request authorization to disclose Canadian datasets with partners that have the lawful authority to collect that information. New paragraph 11.13(2)(b.1) proposed by sub-clause 19(2) would provide for CSIS to seek authorization from the Federal Court to disclose a Canadian dataset. To do so, CSIS’ application for judicial authorization, which must first be approved by the Minister, would have to describe the manner, if any, by which CSIS intends to disclose the dataset. The Federal Court would maintain judicial discretion to decide whether to authorize the request to disclose and could impose any terms and conditions it considers necessary in respect of the disclosure. Requests for authorization to disclose Canadian datasets are therefore subject to ministerial and judicial oversight. In addition, CSIS’ activities are subject to review by the National Security Intelligence and Review Agency at any time.

Clause 20 – Section 11.14 of the CSIS Act: Contents of Judicial Authorization Previous

Contents of judicial authorization

11.14 (1) A judicial authorization issued under section 11.13 shall specify

  1. a description of the dataset;
  2. the manner in which the Service may update the dataset;

…

(e) any terms and conditions that the judge considers advisable in the public interest.

Maximum period

(2) A judicial authorization shall be valid for a period of not more than two years.

Proposal

Subsection 11.14(2) of the Act is replaced by the following:

Disclosure of dataset

(1.1) The judicial authorization shall also establish any terms and conditions that the judge considers necessary respecting the disclosure of the dataset by the Service.

Non-application

(1.2) Section 19 does not apply to the disclosure of the dataset.

Maximum period

(2) The judicial authorization is valid for a period of not more than five years.

Context

Analysis

Proposed subsection 11.14(1.1), which would enable the Federal Court to authorize the disclosure of a Canadian dataset, subject to any terms and conditions the Court considers necessary, would be the necessary corresponding authority for the amendments proposed by clause 19.

CSIS’ authorities to disclose information collected under its duties and functions are found in section 19 of the CSIS Act. The authorities to disclose datasets would be severed from those in section 19 for congruence with the principle that the dataset authority in sections 11.01 to 11.25 of the Act has its own rules separate from CSIS’ duties and functions,. In the case of Canadian datasets, the disclosure is governed by judicial authorization and not section 19.

The types of information that may assist CSIS in fulfilling its duties and functions under sections 12 to 16 of the CSIS Act are likely to continue to be useful beyond a two year period, which is the maximum period for which the Federal Court can authorize retention. The proposed amendment to subsection 11.14(2) of the Act would increase the maximum duration of judicial authorizations from two to five years, while maintaining ministerial and judicial oversight over the retention of Canadian datasets.

Clause 21 – Section 11.15 of the CSIS Act: Destruction – No Judicial Authorization

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Destruction — absence of new application

(3) If the Service has not made a new application for a judicial authorization to retain a Canadian dataset under section 11.12 before the period of the judicial authorization given in respect of that dataset expires, the Service shall destroy the dataset within 30 days after the expiry of that period.

New application

(4) If the Service makes a new application under section 11.12 for a judicial authorization for a Canadian dataset in respect of which the period of the judicial authorization has not expired, the Service may, subject to subsection (5), retain it until a decision is made in respect of the new application.

Limit

(5) If the period of a judicial authorization expires, in the circumstances under subsection (4), the Service shall neither query nor exploit the dataset until and unless a new authorization has been issued for the dataset.

Proposal

Subsections 11.15(3) to (5) of the Act are replaced by the following:

Destruction — absence of new application

(3) If the Service does not request the Minister’s approval under section 11.12 to make a new application for a judicial authorization to retain a Canadian dataset before the period of the judicial authorization given in respect of that dataset expires, the Service shall destroy the dataset within 30 days after the expiry of that period.

New application — approval not obtained

(3.1) If the Service requests but does not obtain the Minister’s approval under section 11.12 to make a new application for a judicial authorization for a Canadian dataset in respect of which the period of the judicial authorization has not expired, the Service shall destroy the dataset within 30 days after the later of the day on which the request was rejected by the Minister and the day on which the period of the judicial authorization expires.

New application — approval obtained

(4) If the Service requests and obtains the Minister’s approval under section 11.12 to make a new application for a judicial authorization for a Canadian dataset in respect of which the period of the judicial authorization has not expired, the Service may, subject to subsection (5), retain the dataset until a decision is made in respect of the new application.

Limit

(5) If the period of a judicial authorization expires, in the circumstances under subsection (3.1) or (4), the Service shall neither query nor exploit the dataset until and unless a new authorization has been issued for the dataset.

Context

Analysis

The dataset authority is designed to provide for various levels of ministerial accountability and independent oversight. One of the accountability measures is the requirement that the Minister approve the making of an application for a judicial authorization to retain a Canadian dataset, as set out in subsection 11.12(1). The proposed provision would introduce greater flexibility by ensuring that CSIS can retain, without querying or exploiting, a dataset for which it has requested the Minister’s approval. The current provisions in the Act contain some ambiguity (for example in s. 11.15(3) and (4)). By explicitly requiring CSIS to delete Canadian datasets and describing the circumstances under which CSIS can continue to retain a dataset that is not the subject of a valid judicial authorization, clause 21 would clarify what CSIS can and cannot do with a dataset in those circumstances.

Clause 22 – Section 11.17 of the CSIS Act: Authorization

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Authorization

11.17 (1) The Minister or the designated person may, on the request of the Service, authorize the Service to retain a foreign dataset if the Minister or the designated person concludes

  1. that the dataset is a foreign dataset;
  2. that the retention of the dataset is likely to assist the Service in the performance of its duties and functions under sections 12, 12.1, 15 and 16; and
  3. that the Service has complied with its obligations under section 11.1.

…

Maximum period of authorization

(3) An authorization under subsection (1) shall be valid for a period of not more than five years from the date on which the Commissioner approves it under the Intelligence Commissioner Act.

…

Proposal

Paragraph 11.17(1)(b) of the Act is replaced by the following:

Subsection 11.17(3) of the Act is replaced by the following:

Disclosure of dataset

(2.1) The authorization shall also establish any terms and conditions that the Minister or designated person considers necessary respecting the disclosure of the dataset by the Service.

Non-application

(2.2) Section 19 does not apply to the disclosure of the dataset.

(3) The authorization is valid for a period of not more than 10 years from the date on which the Commissioner approves it under the Intelligence Commissioner Act.

Context

Analysis

The Minister already considers whether a dataset is relevant to CSIS’ duties and functions under sections 12, 12.1, 15, or 16 when deciding whether to authorize the retention of a foreign dataset. The amendments to paragraph 11.17(1)(b) simply clarify that a dataset needs to only be relevant to one of the duties and functions listed, not all.

There is currently no mechanism in the CSIS Act for CSIS to request authorization to disclose foreign datasets with partners that have the lawful authority to collect the same information. New subsection 11.17(2.1) proposed by sub-clause 22(2) would provide a mechanism for CSIS to seek authorization from the Minister to disclose a foreign dataset. To do so, CSIS’ application for ministerial authorization would have to describe the manner, if any, by which CSIS intends to disclose the dataset. The Minister can decide whether to authorize the request to disclose and impose any conditions they consider necessary in respect of the disclosure. Following this, the

Minister’s authorization must be reviewed for reasonableness by the Intelligence Commissioner, providing another layer of accountability and oversight over CSIS’ proposed disclosure of foreign datasets. CSIS’ activities are also subject to review by the National Security Intelligence and Review Agency at any time.

CSIS’ authorities to disclose information collected under its duties and functions are found in section 19 of the CSIS Act. The authorities to disclose datasets would be severed from those in section 19 for congruence with the principle that the dataset authority in sections 11.01 to 11.25 of the Act is separate from CSIS’ duties and functions. In the case of foreign datasets, the disclosure is governed by ministerial authorization and not section 19.

The types of information that may assist CSIS in fulfilling its duties and functions under sections 12 to 16 of the CSIS Act are likely to continue to be useful beyond a five year period, which is the maximum period for which the Minister can authorize retention. The proposed amendment to subsection 11.17(2) of the Act would increase the maximum duration of ministerial authorizations from five to ten years, while maintaining Ministerial and Intelligence Commissioner oversight over the retention of foreign datasets. Since the entry into force of the

dataset authority, the Minister’s authority in relation to foreign datasets has been delegated to the Director of CSIS, who authorizes the retention of foreign datasets and then submits the authorizations to the Intelligence Commissioner for their review under the Intelligence Commissioner Act.

Clause 23 – Section 11.2 of the CSIS Act: Query and Exploitation of Datasets Previous

Query or exploitation of datasets

11.2 (1) A designated employee may, in accordance with subsections (2) to (4), query or exploit Canadian datasets and foreign datasets.

Dataset subject to judicial authorization — sections 12 and 12.1

(2) A designated employee may, to the extent that it is strictly necessary, query or exploit a Canadian dataset that is subject to a judicial authorization issued under section 11.13 to assist the Service in the performance of its duties and functions under sections 12 and 12.1.

Dataset subject to approved authorization — sections 12, 12.1 and 15

(3) A designated employee may, to the extent that it is strictly necessary, query or exploit a foreign dataset that is the subject of an authorization under section 11.17 that has been approved by the Commissioner under the Intelligence Commissioner Act, to assist the Service in the performance of its duties and functions under sections 12, 12.1 and 15.

…

Proposal

Subsections 11.2(2) and (3) of the Act are replaced by the following:

Dataset subject to judicial authorization — section 12, 12.1 or 15

(2) A designated employee may, to the extent that it is strictly necessary, query or exploit a Canadian dataset that is subject to a judicial authorization issued under section 11.13 to assist the Service in the performance of its duties and functions under section 12, 12.1 or 15.

Dataset subject to approved authorization — section 12, 12.1 or 15

(3) A designated employee may, to the extent that it is strictly necessary, query or exploit a foreign dataset that is the subject of an authorization under section 11.17 that has been approved by the Commissioner under the Intelligence Commissioner Act, to assist the Service in the performance of its duties and functions under section 12, 12.1 or 15.

Context

Analysis

Datasets may contain information that is relevant to screening investigations for immigration and government security purposes. These investigations sometimes pertain to Canadians or individuals in Canada. Other times they pertain to non-Canadians outside Canada, but information about these individuals may be in a Canadian dataset. However, the CSIS Act currently precludes CSIS from querying or exploiting Canadian datasets for such investigations. The amendments proposed by clause 23 would enable CSIS to query and exploit Canadian datasets for these investigations. The proposed amendments to subsections 11.2(2) and (3) also clarify that a dataset needs to only be relevant to one of the duties and functions listed, not all.

Clause 24 – Section 11.21 of the CSIS Act: Retention Previous

Retention

11.21 (1) The Service may retain the results of a query or exploitation of a dataset performed under section 11.2 if

  1. the collection, analysis and retention of the results are carried out under section 12;
  2. the retention is strictly necessary to assist the Service in the performance of its duties and functions under sections 12.1 and 15; or
  3. the retention is required to assist the Minister of National Defence or the Minister of Foreign Affairs in accordance with section 16.

…

Proposal

Paragraph 11.21(1)(b) of the Act is replaced by the following:

Context

Analysis

The amendments to paragraph 11.21(1)(b) would clarify that the results of a query or exploitation do not need to be relevant to both sections 12.1 and 15 of the CSIS Act. Rather, retention of the results can be authorised so long as the dataset is relevant to one of those duties and functions and so long as the test as stipulated in this paragraph, namely that the retention is strictly necessary, has been met. Similar amendments are made throughout the dataset authority.

Clause 25 – Section 11.22 of the CSIS Act: Query of Datasets in Exigent Circumstances

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Query of datasets — exigent circumstances

11.22 (1) The Director may authorize a designated employee to query a Canadian dataset that is not the subject of a valid judicial authorization issued under section 11.13 or a foreign dataset that is not the subject of a valid authorization under section 11.17 that has been approved by the Commissioner under the Intelligence Commissioner Act, if the Director concludes

  1. that the dataset was collected by the Service under subsection 11.05(1); and
  2. that there are exigent circumstances that require a query of the dataset
    1. to preserve the life or safety of any individual, or
    2. to acquire intelligence of significant importance to national security, the value of which would be diminished or lost if the Service is required to comply with the authorization process under section 11.13 or sections 11.17 and 11.18.

Contents of authorization

(2) The Director’s authorization shall contain the following:

  1. a description of the exigent circumstances;
  2. a description of the dataset to be queried; and
  3. the grounds on which the Director concludes that the query is likely to produce the intelligence referred to in subparagraph (1)(b)(i) or (ii).

Retention

(2.1) The Service may retain the results of a query of a dataset performed under subsection (1) if

...

Proposal

The portion of subsection 11.22(1) of the Act before subparagraph (b)(ii) is replaced by the following:

Query or exploitation in exigent circumstances

11.22 (1) The Director may authorize a designated employee to query or exploit a Canadian dataset that is not the subject of a valid judicial authorization issued under section 11.13 or a foreign dataset that is not the subject of a valid authorization under section 11.17 that has been approved by the Commissioner under the Intelligence Commissioner Act, if the Director concludes

  1. that the dataset was collected by the Service under section 11.05; and
  2. that there are exigent circumstances that require a query or exploitation of the dataset
    • (i) to acquire intelligence for the purpose of preserving the life or safety of any individual, or

Context

Analysis

The CSIS Act limits the types of data analytics that CSIS may perform in exigent circumstances to querying. Under such circumstances, the timeliness and relevance of intelligence is of the essence. The amendments would therefore enable exploitation as part of the exigency provisions in the dataset authority. Importantly, under the proposed amendment, an authorization by the Director of CSIS to query or exploit a dataset in exigent circumstances is only valid if it is approved by the Intelligence Commissioner (s. 11.23).

The amendments to subparagraph 11.22(1)(b)(i) of the Act clarify the purpose of the provision. The mere act of querying or exploiting a dataset will not preserve the life or ensure the safety of an individual, rather such actions could reveal intelligence that can be used for that purpose.

Clause 26 – Section 11.24 of the CSIS Act: Record Keeping

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Requirements

11.24 (3) The Service shall, with respect to Canadian and foreign datasets,

…

  1. limit access to those datasets to designated employees and take reasonable measures to ensure that any information that they obtained, or to which they had access, is only communicated for the purpose of performing their duties or functions under this Act;
  2. establish record keeping requirements for those datasets with respect to the rationale for their collection and retention, the details of each query and exploitation, the results of those queries and exploitations, and if the results were retained for the purpose of performing their duties or functions under section 12, 12.1, 15 or 16; and

…

Proposal

Paragraphs 11.24(3)(b) and (c) of the Act are replaced by the following:

  1. limit access to those datasets to designated employees and take reasonable measures to ensure that any information that they obtained, or to which they had access, is only communicated for the purpose of performing the Service’s duties and functions under this Act;
  2. establish record keeping requirements for those datasets with respect to the rationale for their collection and retention, the details of each query and exploitation, the results of those queries and exploitations, and if the results were retained for the purpose of performing the Service’s duties and functions under section 12, 12.1, 15 or 16; and

Context

Analysis

The references elsewhere in the Act are explicit to “the Service” and all use “duties and functions” as opposed to “duties or functions”. The amendments would bring this provision in line with the language in the rest of the CSIS Act.

Clause 27 – Section 11.25 of the CSIS Act: Reports

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None 

Reports

11.25 The Service shall

…

(c) in the case of a query of a dataset performed on the basis of exigent circumstances under section 11.22, give the Review Agency a copy of the Director’s authorization under that section and indicate the results of the query and any actions taken after obtaining those results.

Proposal

Paragraph 11.25(c) of the Act is replaced by the following:

(c) in the case of a query or exploitation performed on the basis of exigent circumstances under section 11.22, give the Review Agency a copy of the Director’s authorization under that section and indicate the results of the query or exploitation and any actions taken after obtaining those results.

Context

Analysis

CSIS already has reporting requirements with respect to the querying of datasets in exigent circumstances. The amendment to paragraph 11.25(c) extends that requirement to exploitation, which is proposed to be added to section 11.22 of the Act by clause 25.

Clause 28 – Heading After Section 11.25 of the CSIS Act

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None

Proposal

The Act is amended by adding the following after section 11.25:

Threats to the Security of Canada

Context

Analysis

This clause would add the new subheading “Threats to the Security of Canada” before section 12 to more clearly delineate the purpose of sections 12, 12.1 and 12.2 of the CSIS Act.

Clause 29 – Heading After Section 12.2 of the CSIS Act

Previous None Proposal

The Act is amended by adding the following after section 12.2:

Security Assessments and Advice

Context

Analysis

This clause would add the new subheading “Security Assessments and Advice” before section 13 to more clearly delineate the purpose of sections 13, 14 and 15 of the CSIS Act.

Clause 30 – Heading After Section 15 of the CSIS Act

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None

Proposal

The Act is amended by adding the following after section 15:

Assistance and Cooperation

Context

Analysis

This clause would add the new subheading “Assistance and Cooperation” before section 16 to more clearly delineate the purpose of section 16 of the CSIS Act.

Clause 31 – Section 16 of the CSIS Act: Collection of Information Concerning Foreign States and Persons

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Collection of information concerning foreign states and persons

16(1) Subject to this section, the Service may, in relation to the defence of Canada or the conduct of the international affairs of Canada, assist the Minister of National Defence or the Minister of Foreign Affairs, within Canada, in the collection of information or intelligence relating to the capabilities, intentions or activities of

  1. any foreign state or group of foreign states; or
  2. any person other than
    1. a Canadian citizen,
    2. a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or
    3. a corporation incorporated by or under an Act of Parliament or of the legislature of a province.

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Proposal

Section 16 of the Act is amended by adding the following after subsection (1):

Information or intelligence outside Canada

(1.1) The assistance provided under subsection (1) may include the collection, from within Canada, of information or intelligence that is located outside Canada if the assistance is directed at a person or thing in Canada or at an individual who was in Canada and is temporarily outside Canada.

Context

Analysis

The proposed amendment to section 16 in clause 31 is responsive to technological advances and court decisions. The Federal Court and Federal Court of Appeal (2018 FC 738, 2018 FCA 207, 2020 FC 757, 2021 FCA 165) have interpreted the “within Canada” requirement to mean that CSIS cannot collect information or intelligence relating to foreign states or persons, from within Canada, when that information is located outside Canada. Due to technological advancements and the borderless nature of electronic communications and information, these court decisions have reduced CSIS’ visibility on the activities of foreign states or foreign individuals within Canada’s borders when information or intelligence is located outside Canada. The Communications Security Establishment Act, on the other hand, explicitly prohibits the Communications Security Establishment (the CSE) from directing any of its collection activities at a Canadian or any person in Canada.

This amendment would close a gap in the Government’s ability to collect foreign intelligence that supports the management of Canada’s foreign relations and national defence with intelligence about the capabilities, intentions or activities of foreign states or persons, who may be involved in foreign interference activities. The proposed subsection 16(1.1) would close this gap by permitting CSIS to collect, from within Canada, information or intelligence that is located outside Canada if the assistance provided to either the Minister of Foreign Affairs or Minister of National Defence is directed at a “person or thing” in Canada, or an individual who was in Canada and is temporarily outside Canada. This amendment would ensure that Parliament’s original intent is preserved. It also ensures that the mandate and role of the CSE remains intact.

Because CSIS may seek a warrant to authorize the collection of information in the performance of its duties and functions under section 16, to give full effect to the amendment proposed by clause 31, a corresponding amendment being proposed to section 21. This would enable the Federal Court to issue warrants to authorize the collection, from within Canada, of information or intelligence that is located outside Canada that would assist CSIS in the performance of its duties and functions under section 16 of the CSIS Act. A similar provision was also included for the new warrant to collect any information, record, document or thing proposed by clause 39.

Clause 32 – Heading After Section 17 of the CSIS Act

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None

Proposal

The Act is amended by adding the following after section 17:

Identity of Employees and Human Sources

Context

Analysis

This clause would add the new subheading “Identity of Employees and Human Sources” after section 17 to more clearly delineate the purpose of sections 18, 18.1 and 18.2 of the CSIS Act.

Clause 33 – Heading After Section 18.2 of the CSIS Act

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None

Proposal

The Act is amended by adding the following after section 18.2:

Disclosure of Information

Context

Analysis

This clause would add the new subheading “Disclosure of Information” after section 18.2 to more clearly delineate the purpose of the disclosure authority at section 19 of the CSIS Act.

Clause 34 – Section 19 of the CSIS Act: Authorized Disclosure of Information Previous

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Idem

(2) The Service may disclose information referred to in subsection (1) for the purposes of the performance of its duties and functions under this Act or the administration or enforcement of this Act or as required by any other law and may also disclose such information,

…

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Proposal

Paragraph 19(2)(a) of the Act is replaced by the following:

Paragraph 19(2)(d) of the Act is replaced by the following:

Section 19 of the Act is amended by adding the following after subsection (2):

Authorized disclosure — building resiliency against threats

(2.1) For the purpose of building resiliency against threats to the security of Canada, the Service may also disclose information referred to in subsection (1) to any person or entity if all of the following conditions are met:

  1. the information has already been provided to a federal department or agency that performs duties and functions to which the information is relevant;
  2. the information does not contain any personal information, as defined in section 3 of the Privacy Act, of a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or any individual in Canada;
  3. the information does not contain the name of a corporation incorporated or continued under the laws of Canada or a province or the name of a Canadian entity.

Context

Analysis

At the time of enacting the CSIS Act, national security was primarily the purview of the federal government, where espionage and foreign interference targeted military technology and federal government institutions. For that reason, CSIS is authorized to collect, retain, and provide necessary intelligence to the Government of Canada to make decisions to protect Canada’s national security. Today, threats to the security of Canada, including foreign interference, impact every order of government and all sectors of society, including Canadian communities, academia, the media, and private enterprises. CSIS’ expertise and information are increasingly relevant to those outside of the federal government, and these partners turn to CSIS more than ever for information that can help them build resilience against threats.

The new resiliency disclosure authority proposed in sub-clause 34(3) would enable CSIS to disclose information to build resiliency against threats making Canadians better able to understand and recognize them before they occur.

This new disclosure authority would require that the information CSIS seeks to disclose also be provided to a federal department or agency that performs duties and functions to which the information is relevant, where one exists. The information disclosed under this provision cannot include any personal information pertaining to a Canadian citizen, permanent resident, or any individual in Canada, or contain the name of a Canadian entity or a corporation incorporated under federal or provincial law. CSIS can however, disclose information it holds about foreign states, or non-Canadian entities who pose threats to Canada’s national security.

The new “public resiliency disclosure” authority is not intended to displace any of CSIS’ other authorities to (1) advise the Government of Canada of threats against Canada’s national security, (2) provide information to any third party on a reasonably anticipated and credibly articulated “give to get” basis; or (3) disclose information to any third party as a threat reduction measure.

This new “public resiliency disclosure” also complements the changes to paragraph 19(2)(d) proposed by sub-clause 34(2). In cases where disclosing the personal information or naming the name of a Canadian entity would be essential in the public interest, including when the public interest is to build resiliency to threats, the Minister would decide whether the disclosure outweighs the potential privacy intrusion.

The change to paragraph 19(2)(a) proposed by sub-clause 34(1) is intended to address the reality that today not all individuals responsible for investigating alleged contraventions of law are sworn peace officers. This change would respond to the evolving nature of investigative bodies and the need to disclose information to administrative officials, such as those responsible for administering election related legislation, who are not peace officers.

Clause 35 – Heading After Section 19 of the CSIS Act

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None

Proposal

The Act is amended by adding the following after section 19:

Protection of Employees and Justification

Context

Analysis

This clause would add the new subheading “Protection of Employees and Justification” after section 19 to more clearly delineate the purpose of sections 20 and 20.1 of the CSIS Act.

Clause 36 – Section 20.1 of the CSIS Act: Acts or Omissions

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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

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Proposal

Paragraph 20.1(8)(b) of the Act is replaced by the following:

Context

Analysis

Paragraph 20.1(8)(b) of the CSIS Act does not explicitly specify that, when operating under an Emergency Designation, the employee would be justified in directing the commission of an act or omission. Rather, as currently written, this section only refers to a designated employee committing an act or omission, which leaves out the notion of an employee directing another individual.

Should the need arise to designate an employee in an emergency situation, CSIS employees and senior designated employees consulting paragraph 20.1(8)(b) as it is currently written could be left with the impression that emergency designations can only be used when committing an act or omission and not when directing the commission of an act or omission. The provision (subsection 20.1(15)) which establishes the justification for directing the commission of an act or omission that would otherwise constitute an offence clearly accounts for exigent circumstances in which it is not feasible to acquire authorization prior to directing an act or omission. Further, subsection 20.1(10), which speaks to conditions which may be imposed on both routine and emergency designations, clearly accounts for both the commission and directing of an act or omission.

The amendments proposed by clause 36 would make the paragraph consistent with the other provisions in section 20.1 of the Act for designated employees that are justified in committing or directing another person to commit what would otherwise constitute an offence.

Clause 37 – Part II of the CSIS Act: Proposed Preservation and Production Order Authorities

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None

Proposal

The Act is amended by adding the following before section 21:

Preservation order

20.3 (1) The Director or any employee who is designated by the Director for the purpose may make an application to a judge for a preservation order under this section.

Making of order

(2) Despite any other law but subject to the Statistics Act, the judge may order a person or entity to preserve any information, record or document —regardless of medium or form —or thing that is in their possession or control when they receive the order, if the judge is satisfied by information on oath in Form 1 of Schedule 2 that

  1. there are reasonable grounds to suspect that the information, record, document or thing is in the person or entity’s possession or control and will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its du ties and functions under section 16;
  2. the order is necessary to prevent the loss or destruction or ensure the preservation of the information, record, document or thing; and
  3. the Director or an employee who is designated by the Director for the purpose intends to apply or has applied for a production order under section 20.4 or a warrant under section 21 or 22.21 to obtain the information, record, document or thing or, under section 23, to remove a thing.

Form 2

(3) The order is to be made in Form 2 of Schedule 2.

Preservation outside Canada

(4) The order may be made in respect of information, records, documents or things located outside Canada, with any modifications that the circumstances require.

Measures

(5) The judge may include in the order any measure that they consider necessary in the public interest, including to ensure the confidentiality of the order.

Expiry of order

(6) The order expires 90 days after the day on which it is made.

Notification of Minister

(7) The Director shall notify the Minister that an application for an order has been made under this section as soon as feasible after the application is made.

Production order

20.4 (1) The Director or an employee who is designated by the Minister for the purpose may, after having obtained the Minister’s approval, make an application to a judge for a production order under this section.

Making of order

(2) Despite any other law but subject to the Statistics Act, the judge may order a person or entity to produce any information, record or document —regardless of medium or form —that is in their possession or control when they receive the order if the judge is satisfied by information on oath in Form 3 of Schedule 2 that there are reasonable grounds to believe that the information, record or document is in the person or entity’s possession or control and will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16.

Form 4

(3) The order is to be made in Form 4 of Schedule 2.

Production outside Canada

(4) The order may be made in respect of information, records or documents located outside Canada, with any modifications that the circumstances require.

Measures

(5) The judge may include in the order any measure that they consider necessary in the public interest, including to ensure the confidentiality of the order.

Revocation or variation of production order

20.5 (1) Before they produce any information, record or document that they are required to produce under an order made under section 20.4, a person or entity may apply in writing to a judge to revoke or vary the order.

Notice required

(2) The person or entity may make the application only if they give notice of their intention to do so to a judge and to an employee in Form 5 of Schedule 2 within 14 days after the day on which the order is served.

No obligation to produce

(3) The person or entity is not required to produce the information, record or document until a final decision is made with respect to the application. 30

Revocation or variation of order

(4) The judge may revoke or vary the order if satisfied that

  1. it is unreasonable in the circumstances to require the applicant to produce the information, record or document; or
  2. production of the information, record or document would disclose information that is privileged or otherwise protected from disclosure by law.

Clarification — voluntary preservation or production

20.6 (1) For greater certainty, the Service may request that a person or entity voluntarily preserve any information, record, document or thing, or voluntarily produce any information, record or document to the Service, without needing to obtain a preservation or production order so long as the person or entity is not prohibited by law from preserving or producing the information, record, document or thing, as the case may be, and the Service may collect it under section 12 or 16.

Clarification — other collection authorities

(2) For greater certainty, the fact that a preservation order or production order may be made under section 20.3 or 20.4 does not affect the Service’s authority to collect any information, record, document or thing under any other provision of this Act.

No civil or criminal liability

20.7 No criminal or civil proceedings lie against a person who voluntarily preserves any information, record, document or thing, or voluntarily produces any information, record or document, following a request from the Service in the circumstances described in subsection 20.6(1), or against a person acting on behalf of an entity that receives such a request.

Destruction of preserved elements — preservation order

20.8 (1) A person or entity that is subject to a preservation order made under section 20.3 shall destroy the information, record, document or thing that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record, document or thing under that section as soon as feasible after the order expires, unless they are subject to a new preservation order, a production order made under section 20.4 or a warrant issued under section 21, 22.21 or 23 with respect to the information, record, document or thing, as the case may be.

Destruction of preserved elements — production order

(2) A person or entity that is subject to a production order made under section 20.4 with respect to any information, record or document that they preserved under a preservation order made under section 20.3 shall destroy the information, record or document that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record or document under that section as soon as feasible after the earlier of

  1. the day on which the production order is revoked, and
  2. the day on which the information, record or document, or document prepared for the purpose of preserving the information, record or document, is produced under the production order.

Destruction of preserved elements — warrant

(3) Despite subsections (1) and (2), a person or entity that preserved any information, record, document or thing under a preservation order made under section 20.3 shall destroy the information, record, document or thing that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record, document or thing under that section when the information, record, document or thing, or document prepared for the purpose of preserving the information, record, document or thing, is obtained under a warrant issued under section 21 or 22.21 or when a thing is removed in accordance with a warrant issued under section 23.

Context

Analysis

Currently the CSIS Act does not provide for a separate authority to enable CSIS to compel an entity to preserve perishable information (e.g., financial transaction data). This means that information that will assist in an investigation could be lost while CSIS takes the necessary steps to obtain a section 21 warrant, which requires CSIS to demonstrate investigative necessity. Similarly, the CSIS Act does not provide for CSIS to compel a third party to produce information it already possesses or controls. Currently, CSIS must apply for a section 21 warrant to collect the information, which requires demonstrating investigative necessity, and to use an assistance order to compel third parties to provide the information on record. While they would be new to the CSIS Act, preservation and production orders are not themselves new tools. The proposed authorities are modelled on the authorities routinely relied upon by Canadian law enforcement and intelligence agencies in other democracies to compel preservation or production.

Applications for preservation and production orders would need to be made using specific forms, which are proposed to be added to a new schedule of the CSIS Act by clause 46 and which is contained in Schedule 1 of this Bill. Similarly, preservation and production orders would need to be made using specific forms, which are likewise proposed to be added to a new schedule of the CSIS Act by clause 46 and which is contained in Schedule 1 of this Bill.

The proposed threshold for obtaining a preservation order is reasonable grounds to suspect. CSIS may seek a third party to preserve any information, record, document or thing. Making such an application does not require the prior approval of the Minister, because CSIS would not be able to collect any information, record, document, or thing. However, the Minister would have to be notified once a preservation order application has been filed.

In the event that the Federal Court grants a preservation order, CSIS would still be required under the new provisions to return to the Court, after having obtained the Minister’s approval, and demonstrate reasonable grounds to believe that a production order or a warrant is required to obtain the preserved information, record, document, or thing. Thus, the threshold for CSIS to collect information would remain high, the safeguards and oversight of the Minister and the Court would remain strong, and CSIS’ access to information that is more than minimally intrusive would remain Charter compliant. Notably, CSIS would only be able to compel the production of information, records or documents pursuant to a production order. To obtain a thing, on the other hand, CSIS would require a warrant as well as an assistance order.

The new section 20.5 proposed by clause 37 would introduce a mechanism pursuant to which a third party who is served with a production order issued under proposed section 20.4 could seek to have the Federal Court revoke or vary the production order. The third party would be required to provide notice to both an employee of CSIS – which in practice would be the person who served the production order – as well as to the Federal Court in accordance with a specific form, which is proposed to be added to a schedule of the CSIS Act proposed to be added to a new schedule of the CSIS Act by clause 46 and which is contained in Schedule 1 of this Bill. There are only two grounds pursuant to which a third party could seek revocation or variance: on the basis that production is unreasonable in the circumstances or on the basis that the information, record or document would disclose information that is privileged or otherwise protected by law from disclosure.

Clause 37 would also enact three additional provisions. First would be a new provision clarifying that should the proposed preservation and production order authorities be enacted, these do not prevent a third party from voluntarily preserving or producing any information, record, document or thing if they may do so lawfully, and if CSIS can collect the information, record or document pursuant to its statutory authorities. This provision would also clarify the fact that a preservation or production order may be made does not affect CSIS’ authority to collect under any other provision for the CSIS Act. Second would be a new provision specifying that no civil or criminal liability attaches to any person, or person acting on their behalf, who voluntarily preserves or produces any information, record, document or thing to CSIS. Third would be new provisions that provide for the destruction of the preserved elements.

Clause 38 – Part II of the CSIS Act: Amendments to Section 21

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…

Retention of information — incidental collection

(1.1) The applicant may, in an application made under subsection (1), request the judge to authorize the retention of the information that is incidentally collected in the execution of a warrant issued for the purpose of section 12, in order to constitute a dataset.

Matters to be specified in application for warrant

(2) An application to a judge under subsection (1) shall be made in writing and be accompanied by an affidavit of the applicant deposing to the following matters, namely,

…

…

…

Retention of information

(3.01) If the judge to whom the application is made is satisfied that the retention of the information that is incidentally collected in the execution of a warrant is likely to assist the Service in the performance of its duties or functions under sections 12, 12.1 and 16, the judge may, in a warrant issued under this section, authorize the retention of the information requested in subsection (1.1), in order to constitute a dataset.

Activities outside Canada

(3.1) Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada.

Matters to be specified in warrant

(4) There shall be specified in a warrant issued under subsection (3)

Datasets

(4.1) If the Service is authorized to retain information in accordance with subsection (1.1) in order to constitute a dataset that the Service may collect under this Act, that dataset is deemed to be collected under section 11.05 on the first day of the period for which the warrant is in force.

…

Proposal

Subsection 21(1.1) of the Act is repealed. Paragraph 21(2)(d.1) of the Act is repealed.

Paragraph 21(2)(h) of the Act is replaced by the following:

Subsection 21(3.01) of the Act is repealed.

Section 21 of the Act is amended by adding the following after subsection (3.1):

Information or intelligence outside Canada

(3.2) Without regard to any other law, including that of any foreign state, and to assist the Service in the performance of its duties and function under section 16, a judge may, in a warrant issued under subsection (3), authorize the collection, from within Canada, of information or intelligence that is located outside Canada.

Context

Paragraph 21(4)(d.1) of the Act is repealed. Subsection 21(4.1) of the Act is repealed. Context

Analysis

This clause repeals the provisions related to datasets because a new process for CSIS to constitute datasets is being proposed by clause 11, which continues to ensure that the terms and conditions of the warrant or production order continue to apply to the information.

The requirement to disclose to the Federal Court previous warrant applications under section 21 of the Act is already set out at paragraph 21(2)(h). Sub-clause 38(3) proposes to expand this requirement to also include the warrant proposed by clause 39.The proposed amendment to section 16 in clause 31 would close a gap in the Government’s ability to collect foreign intelligence that has emerged as a result of technological advances and the borderless nature of information and communications. It would specifically authorize CSIS to collect, from within Canada, information or intelligence that is located outside of Canada provided that the CSIS is directing its assistance mandate at a person or thing in Canada, or at an individual who was in Canada but is temporarily outside Canada.

Because CSIS may seek a warrant to authorize the collection of information in the performance of its duties and functions under section 16, to give full effect to the amendment proposed by clause 31, clause 38 would amend section 21 by adding a new subsection (3.2) to enable the Federal Court to issue warrants for that purpose. Clause 39 proposes a similar provision for the new warrant authority to collect any information, record, document or thing.

Clause 39 – Part II of the CSIS Act: Proposed New Warrant to Obtain Information, Record, Document, or Thing

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None

Proposal

The Act is amended by adding the following after section 22.2:

Application for warrant to obtain information, record, document or thing

22.21 (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 obtain any information, record or document —regardless of medium or form — or thing that will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16, 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 for warrant

(2) An application to a judge under subsection (1) shall be made in writing and be accompanied by an affidavit of the applicant deposing to the following matters:

  1. the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required to enable the Service to obtain any information, record or document — regardless of medium or form—or thing that will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16;
  2. the type of information, record, document or thing proposed to be obtained;
  3. the powers referred to in paragraphs (3)(a) to (c) proposed to be exercised;
  4. the identity of the person, if known, who has possession of the information, record, document or thing proposed to be obtained;
  5. the persons or classes of persons to whom the warrant is proposed to be directed;
  6. a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given; 5
  7. the period, not exceeding 120 days, for which the warrant is requested to be in force; and
  8. any previous application made under subsection (1) or 21(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 paragraph (2)(a) set out in the affidavit accompanying the application, the judge may issue a warrant authorizing the persons to whom it is directed to obtain, through a single attempt, any information, record or document —regardless of medium or form —or thing and, for that purpose,

  1. to enter any place or open or obtain access to any thing;
  2. 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; or
  3. to install, maintain or remove any thing. activities 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 activities outside Canada to enable the Service to investigate a threat to the security of Canada.

Obtaining information, records or documents from within Canada

(5) Without regard to any other law, including that of any foreign state, and to assist the Service in the performance of its duties and functions under section 16, a judge may, in a warrant issued under subsection (3), authorize the Service to obtain, from within Canada, any information, record or document —regardless of medium or form —that is located outside Canada.

Matters to be specified in warrant

(6) There shall be specified in a warrant issued under subsection (3)

  1. the type of information, record, document or thing authorized to be obtained and the powers referred to in paragraphs (3)(a) to (c) authorized to be exercised for that purpose;
  2. the identity of the person, if known, who has possession of the information, record, document or thing to be obtained;
  3. the persons or classes of persons to whom the warrant is directed;
  4. a general description of the place where the warrant may be executed, if a general description of that place can be given;
  5. the period for which the warrant is in force in accordance with subsection (7); and
  6. any terms and conditions that the judge considers advisable in the public interest.

Duration of warrant

(7) A warrant issued under subsection (3) ceases to have effect on the earlier of the end of a period of up to 120 days that begins on the day on which the warrant is issued and the day on which the information, record, document or thing is obtained.

Clarification — other warrants

(8) For greater certainty, the fact that a warrant may be issued under this section does not affect a judge’s authority to issue a warrant under section 21 nor the validity of such a warrant.

Context

Analysis

This proposed authority would provide a new mechanism for CSIS to obtain prior judicial authorization to conduct a single collection activity to obtain any information, record, document, or thing that will assist CSIS to investigate, within or outside Canada, a threat to the security of

Canada or to perform its duties and functions under section 16 of the Act. The new authority would provide additional flexibility for CSIS to seek a more focused type of warrant from the Federal Court when its investigational objectives could be achieved by a single collection activity, such as a search of a single device, or a one-time covert entry into a place, instead of a more broadly-framed section 21 warrant. Unlike section 21 warrant applications, the proposed new warrant authority would not require that CSIS demonstrate that other investigative techniques have been tried and failed or are unlikely to succeed, that there is urgency, or that without the warrant information of importance would not be obtained.

However, to obtain a single collection activity warrant, CSIS would still be required to satisfy all other core requirements of section 21 warrant applications, including obtaining Ministerial approval, as well as demonstrating to the Federal Court that there are reasonable grounds to believe that the warrant is required and will assist its investigation. The Court must also be informed of all previous warrant applications against the same subject of investigation. This requirement would ensure that the Court would be aware of how many times this new warrant authority has been previously granted against the same subject of investigation. The Court would retain the discretion to deny an application for a single collection activity warrant on the basis that a section 21 warrant would be more appropriate in the circumstances.

The new proposed warrant would also be more limited in nature than a section 21 warrant; the new warrant would not be able to authorize the interception of communications or more than one collection activity, which must be described to the Court in the application. The Service would have up to 120 days to execute the warrant from the time it is issued, and once executed, the authority would be spent. The proposed new warrant authority would also allow the Court to impose any terms and conditions that the judge considers advisable in the public interest.

Clause 40 – Section 22.3 of the CSIS Act: Assistance Order

Previous

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.

Proposal

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, 21.1,22.21 or 23.

Context

Analysis

The proposed amendment to section 22.3 would allow CSIS to seek an assistance order from the Federal Court in support of the proposed new single collection activity warrant, as well as for removal warrants. Assistance orders do not themselves authorize any new collection activities; rather, they act to legally compel a third party to assist CSIS in executing warranted authorities issued by the Court, as well as to keep any such assistance confidential, which can be essential to maintaining operational security and protecting CSIS employees. In each case where CSIS seeks an Assistance Order, it must satisfy the Court that the third party’s assistance is reasonably considered to be required to give effect to the warrant. Like all judicial authorizations under the CSIS Act, the Federal Court would retain the discretion to grant or refuse an assistance order.

Clause 41 – Section 23 of the CSIS Act: Warrant Authorizing Removal

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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.

Proposal

Warrant authorizing removal

23 (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 remove any thing from any place where it was installed in the performance of the Service’s duties and functions under section 12 or 16 or in accordance with a warrant issued under section 21, 21.1 or 22.21, the Director or employee may make an application in accordance with subsection (2) to a judge for a warrant under this section.

Matters to be specified in application for warrant

(2) An application to a judge under subsection (1) shall be made in writing and be accompanied by an affidavit of the applicant deposing to the following matters:

  1. a general description of the thing to be removed;
  2. the facts relied on to justify the belief, on reason able grounds, that the thing is in the place;
  3. the powers referred to in paragraphs (3)(a) to (c) proposed to be exercised;
  4. the identity of the person, if known, who possesses the thing;
  5. the persons or classes of persons to whom the warrant is proposed to be directed;
  6. a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given; and
  7. the period for which the warrant is requested to be in force.

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 paragraph (2)(b) set out in the affidavit accompanying the application, the judge may issue a warrant authorizing the persons to whom it is directed to remove any thing from any place where it was installed and, for that purpose,

  1. to enter any place or open or obtain access to any other thing;
  2. to search for the thing; or
  3. to install, maintain, remove, return or examine any other thing.

Matters to be specified in warrant

(4) There shall be specified in a warrant issued under subsection (3)

  1. a general description of the thing authorized to be removed and the powers referred to in paragraphs (3)(a) to (c) authorized to be exercised for that purpose;
  2. the identify of the person, if known, who possesses the thing;
  3. the persons or classes of persons to whom the warrant is directed;
  4. a general description of the place where the warrant may be executed, if a general description of that place can be given;
  5. the period for which the warrant is in force; and
  6. the terms and conditions that the judge considers advisable in the public interest.

Context

Analysis

CSIS has always had the ability to seek a warrant from the Federal Court to remove any thing installed under the authority of a warrant issued under the CSIS Act. Since CSIS’ establishment in 1984, CSIS has protected its investigative methods and techniques and would therefore, at times, need to remove any thing it had previously installed under the authority of a warrant. However, CSIS does at times install things upon consent and not pursuant to a warrant. As a result, there would be no legal authority to remove the thing in certain situations (e.g. where consent of the owner cannot be obtained) as the removal warrant is only available when the thing was installed pursuant to a warrant under sections 21 or 21.1 of the CSIS Act. The proposed amendments would authorize the Court to issue a warrant to not only remove any thing installed under warrant, but also any thing installed without a warrant under CSIS’ duties and functions under sections 12, 12.1 or 16.

The amendment would also introduce a reasonable grounds to believe standard to the existing removal warrant authority in the CSIS Act, as well as the components that must form part of an application to the Court and the powers that the Court may grant.

Clause 42 – Section 27 of the CSIS Act: Hearing of Applications

Previous

Hearing of applications

27 An application for a judicial authorization under section 11.13, 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.

Proposal

Making and hearing of applications

27 (1) An application for a judicial authorization under section 11.13, an application under section 20.3 for a preservation order, an application under section 20.4 for a production order, an application under section 21, 21.1, 22.21 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 made ex parte and heard in private in accordance with regulations made under section 28.

Hearing of applications — section 20.5

(2) An application under section 20.5 for the revocation or variation of a production order shall be heard in private in accordance with regulations made under section 28.

Context

Analysis

Hearings in private, as well as conformity to any established regulations are required for judicial authorizations for Canadian datasets, intelligence collection warrants, threat reduction warrants, assistance orders, and removal warrants, as set out in sections 11.13, 21, 21.1, 22.3, and 23 of the Act, respectively. Ex parte applications though not explicitly required in the Act, have also been the practice to protect CSIS’ sensitive information and its sources since CSIS’ establishment in 1984.

Clause 43 – Section 28 of the CSIS Act: Regulations

Previous

Regulations

28 The Governor in Council may make regulations

  1. prescribing the form of judicial authorizations that may be issued under section 11.13 and of warrants that may be issued under section 21, 21.1 or 23;
  2. governing the practice and procedure of, and security requirements applicable to, hearings of applications for judicial authorization under section 11.13, for warrants that may be issued under section 21, 21.1 or 23, for renewals of those warrants and for orders that may be made under section 22.3;
  1. notwithstanding the Federal Courts Act and any rules made thereunder, specifying the places where those hearings may be held and the places where, and the manner in which, records or documents concerning those hearings shall be kept.

Proposal

Paragraphs 28(a) and (b) of the Act are replaced by the following:

  1. prescribing the form of judicial authorizations that may be issued under section 11.13 and of warrants that may be issued under section 21, 21.1, 22.21 or 23;
  2. governing the practice and procedure of, and security requirements applicable to, hearings of applications for judicial authorization under section 11.13, for warrants that may be issued under section 21, 21.1, 22.21 or 23, for renewals of those warrants and for orders that may be made under section 20.3, 20.4 or 22.3;

Section 28 of the Act is amended by striking out “and” at the end of paragraph (b.1) and by adding the following after that paragraph:

Context

Analysis

The authority for the Governor in Council to make regulations with respect to CSIS’ warrant authority already exists in the Act. The amendments proposed by clause 43 would extend this authority to the proposed preservation order, production order, and warrant to obtain any information, record, document or thing, as well as to the hearing of applications for the revocation or variation of production orders

Clause 44 – Part III of the CSIS Act: Proposed Parliamentary Review

Previous

None

Proposal

The Act is amended by adding the following after section 28:

Parliamentary Review Five-year review

29 As soon as feasible after the fifth anniversary of the 15 day on which this section comes into force and after each subsequent fifth anniversary, a review of this Act and of its administration and operation is to be undertaken by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.

Context

Analysis

There is no statutory requirement for Parliament to review the CSIS Act on a regular basis to ensure that the Act keeps pace with technology and evolving national security threats.

Clause 44 would set out a mechanism for Parliamentary review of the CSIS Act every five years to ensure that it the Act meets requirements with evolving technology and data, and other changes in the national security space.

Clause 45 – Part III of the CSIS Act: Schedule

Previous

None

Proposal

The schedule to the Act is numbered as Schedule 1.

Context

Analysis

This is a technical amendment that would number the existing Schedule of the Act as Schedule 1 to allow for the addition of a new Schedule 2.

Clause 46 – Part III of the CSIS Act: Schedule

Previous

None

Proposal

The Act is amended by adding, after Schedule 1, the Schedule 2 set out in Schedule 1 to this Act.

Context

Analysis

The forms proposed to be added to the CSIS Act by clause 46 are required to give effect to the preservation and production order authorities proposed by clause 37.

Clause 47 – Part III of the CSIS Act

Previous

None

Proposal

The English version of the Act is amended by replacing “he or she” with “the judge” in the following provisions:

  1. the portion of subsection 11.13(1) before paragraph (a); and
  2. subsection 12.1(3.3).

Context

Analysis

The amendments proposed by this clause would bring subsection 11.13(1) and 12.1(3.3) in line with language elsewhere in the CSIS Act.

Clause 48 – Consequential Amendment to the Intelligence Commissioner Act

Previous

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.

Proposal

Section 18 of the Intelligence Commissioner Act is replaced by the following:

Query or exploitation 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 or exploitation of a dataset in exigent circumstances was authorized —are reasonable.

Context

Analysis

The proposed amendment in clause 48 is required to give effect to the proposed amendments to section 11.22 of the CSIS Act by clause 25, which enable CSIS to not only query, but also exploit, datasets in exigent circumstances.

Part 2: Measures to counter foreign interference

Division 1 – Security of Information Act

Clause 49 - Amendments to the Title of the Security of Information Act

Previous

An Act respecting the security of information

Proposal

49 The long title of the Security of Information Act is replaced by the following:

An Act respecting foreign interference and the security of information

Context

Analysis

Clause 50 - Section 1 of the Security of Information Act

Previous

1 This Act may be cited as the Security of Information Act.

Proposal

50 Section 1 of the Act and the heading before it are replaced by the following:

Alternative Title

Alternative title

1 This Act may be cited as the Foreign Interference and Security of Information Act.

Context

Analysis

The name of the Act would change and so the alternative title must be amended to reflect that change.

Clause 51 - Subsection 8(1) to (3) of the Security of Information Act

Previous

8 (1) The following definitions apply in this section and sections 9 to 15.

person permanently bound to secrecy means

(a) a current or former member or employee of a department, division, branch or office of the federal public administration, or any of its parts, set out in the schedule;

…

special operational information means information that the Government of Canada is taking measures to safeguard that reveals, or from which may be inferred,

…

(f) the means that the Government of Canada used, uses or intends to use, or is capable of using, to protect or exploit any information or intelligence referred to in any of paragraphs (a) to (e), including, but not limited to, encryption and cryptographic systems, and any vulnerabilities or limitations of those means; or

Proposal

51 (1) Paragraph (a) of the definition person permanently bound to secrecyin subsection 8(1) of the Act is replaced by the following:

(a) a current or former member or employee of a department, division, branch or office of the federal public administration, or any of its parts, set out in Schedule 1;

Paragraph (f) of the definition special operational informationin subsection 8(1) of the Act is replaced by the following:

(e.1) the military vulnerabilities or advantages of the Canadian Forces, including the operational or technical vulnerabilities and advantages of any ally or adversary;

(f) the means that the Government of Canada used, uses or intends to use, or is capable of using, to protect or exploit any information or intelligence referred to in any of paragraphs (a) to (e.1), including, but not limited to, encryption and cryptographic systems, and any vulnerabilities or limitations of those means; or

(3) The definition person permanently bound to secrecyin subsection 8(1) of the Act is amended by deleting “or” at the end of paragraph (a.2) and by adding the following after that paragraph:

(a.3) a current or former officer or non-commissioned member of a Canadian Forces unit or other element, or any of its parts, set out in Schedule 2 or a current or former officer or non- commissioned member who occupies or occupied a position in the Canadian Forces set out in that Schedule;

(a.4) a person who is or was appointed, attached, assigned or seconded to a Canadian Forces unit or other element, or any of its parts, set out in Schedule 2 or to a position in the Canadian Forces set out in that Schedule; or

Context

Analysis

Clause 52 - Section 9 of the Security of Information Act

Previous

Amending schedule

9 The Governor in Council may, by order, amend the schedule by adding or deleting the name of any current or former department, division, branch or office of the federal public administration, or any of its parts, that, in the opinion of the Governor in Council, has or had a mandate that is primarily related to security and intelligence matters, or by modifying any name set out in the schedule.

Proposal

52 Section 9 of the Act is replaced by the following:

Amending Schedule 1

9 The Governor in Council may, by order, amend Schedule 1 by adding or deleting the name of any current or former department, division, branch or office of the federal public administration, or any of its parts, that, in the opinion of the Governor in Council, has or had a mandate that is primarily related to security and intelligence matters, or by modifying any name set out in the schedule.

Amending Schedule 2

9.1 The Governor in Council may, by order, amend Schedule 2 by adding, deleting or modifying

  1. the name of any current or former Canadian Forces unit or other element, or any of its parts, that, in the opinion of the Governor in Council, has or had a mandate that is primarily related to matters of security and intelligence or of national defence; or
  2. a reference to any current or former position in the Canadian Forces, the powers, duties and functions of which are or were, in the opinion of the Governor in Council, primarily related to matters of security and intelligence or of national defence.

Context

Analysis

These changes would establish the GiC’s ability to amend either schedule. Schedule 1 for the federal public administration and Schedule 2 for CAF positions and units. The separate schedule for the CAF/DND was created because they may seek to make periodic changes to it.

Clause 53-A (Subsections 20 to 20.1)

Previous

Foreign-influenced or Terrorist-influenced Threats or Violence

Threats or violence

20 (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done

Application

(2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada.

Punishment

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.

Proposal

Foreign-influencedor Terrorist-influenced Intimidation, Threats or Violence

Intimidation, threats or violence

20 (1) Every person commits an offence who, at the direction of, for the benefit of or in association with, a foreign entity or a terrorist group, induces or attempts to induce, by intimidation, threat or violence, any person to do anything or to cause anything to be done.

Extraterritorial application

(2) Despite subsection 26(1), a person who commits an act referred to in subsection (1) while outside Canada is deemed to have committed it in Canada if

  1. the victim is in Canada; or
  2. the victim is outside Canada and
    1. the person or the victim or both are
      1. a Canadian citizen,
      2. a person who is ordinarily resident in Canada,
      3. a permanent residentwithin the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
      4. a person who owes allegiance to His Majesty in right of Canada, or
      5. a person who is locally engaged and who performs their functions in a Canadian mission outside Canada, or
    2. is a person described in any of clauses (i)(A) to (E), the intimidation, threat or violence is in relation to the victim’s child, relative or intimate partner, as defined in section 2 of the Criminal Code, and the child, relative or partner is in or outside Canada

Punishment

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.

Sentences to be served consecutively

(4) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  1. any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and
  2. any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

Application — subsections 26(2) to (4)

(5) If a person is deemed under this section to have committed an act referred to in subsection (1) in Canada, subsections 26(2) to (4) apply, with any adaptations that may be necessary, to any proceedings in respect of an offence under subsection (1).

Definition of victim

(6) For greater certainty, in this section, victim means the person who the person who commits, or is alleged to have committed, the offence under subsection (1) induces or attempts to induce, or is alleged to have induced or attempted to induce, to do anything or to cause anything to be done.

Intimidation, threats or violence outside Canada

20.1 (1) Every person commits an offence who, while outside Canada, at the direction of, for the benefit of or in association with, a foreign entity or a terrorist group, induces or attempts to induce, by intimidation, threat or violence, any person outside Canada to do anything or to cause anything to be done

  1. that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests; or
  2. that is reasonably likely to harm Canadian interests.

Application

(2) If any of the facts referred to in paragraph 20(2)(b) apply to either the person who is alleged to have committed an act referred to in subsection (1) or the victim, the person who is alleged to have committed the act is to be prosecuted under subsection 20(1).

Punishment

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.

Sentences to be served consecutively

(4) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  1. any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and
  2. any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

Application — subsections 26(2) to (4)

(5) Subsections 26(2) to (4) apply, with any adaptations that may be necessary, to any proceedings in respect of an offence under subsection (1).

Definition of victim

(6) For greater certainty, in this section, victim means the person who the person who commits, or is alleged to have committed, the offence under subsection (1) induces or attempts to induce, or is alleged to have induced or attempted to induce, to do anything or to cause anything to be done.

Clause 53-A (Subsections 20 to 20.1)

Context

Analysis

Clause 53-B (Subsection 20.2)

Previous

Foreign-influenced or Terrorist-influenced Threats or Violence

Threats or violence

20 (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done

  1. that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests; or
  2. that is reasonably likely to harm Canadian interests.

Application

(2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada.

Punishment

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.

Proposal

Indictable Offence Committed for a Foreign Entity

Committing indictable offence for foreign entity

20.2 (1) Every person who commits an indictable offence under this or any other Act of Parliament at the direction of, for the benefit of or in association with, a foreign entity is guilty of an indictable offence and liable to imprisonment for life.

Sentences to be served consecutively

(2) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  1. any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and
  2. any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

Clause 53-B (Subsections 20.2)

Context

Analysis

Clause 53-C (Subsection 20.3)

Previous

N/A

Proposal

Conduct or Omission for a Foreign Entity

Engaging in surreptitious or deceptive conduct

20.3 (1) Every person commits an indictable offence who, at the direction of, for the benefit of or in association with, a foreign entity, knowingly engages in surreptitious or deceptive conduct or omits, surreptitiously or with the intent to deceive, to do anything if the person’s conduct or omission is for a purpose prejudicial to the safety or interests of the State or the person is reckless as to whether their conduct or omission is likely to harm Canadian interests.

Punishment

(2) Every person who commits an offence under subsection (1) is liable to imprisonment for life.

Sentences to be served consecutively

(3) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

  1. any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and
  2. any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

Clause 53-C (Subsection 20.3)

Context

Analysis

Clause 53-D (Subsection 20.4)

Previous

N/A

Proposal

Political Interference for a Foreign Entity

Influencing political or governmental process

20.4 (1) Every person commits an indictable offence who, at the direction of, or in association with, a foreign entity, engages in surreptitious or deceptive conduct with the intent to influence a political or governmental process, educational governance, the performance of a duty in relation to such a process or such governance or the exercise of a democratic right in Canada.

Punishment

(2) Every person who commits an offence under subsection (1) is liable to imprisonment for life.

Sentences to be served consecutively

(3) A sentence, other than one of life imprisonment, imposed on a person for an offence under subsection (1) is to be served consecutively to

a) any other sentence imposed on the person, other than one of life imprisonment, for an offence arising out of the same event or series of events; and

(b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1).

Definitions

4. The following definitions apply in this section.

educational governance means the governance of a school board or primary or secondary school, college, university or other institution of higher learning or training institution in Canada. (gouvernance scolaire)

political or governmentalprocess includes

  1. any proceeding of a legislative body;
  2. the development of a legislative proposal;
  3. the development or amendment of any policy or program;
  4. the making of a decision by a public office holder or government body, including the awarding of a contract;
  5. the holding of an election or referendum; and
  6. the nomination of a candidate or the development of an electoral platform by a political party. (processus politique ou gouvernemental)

public office holder means any of the following individuals:

  1. any officer or employee of His Majesty in right of Canada and includes
    1. a member of the Senate or the House of Commons and any person on the staff of such a member,
    2. a person who is appointed to any office or body by or with the approval of the Governor in Council or a minister of the Crown, other than a judge receiving a salary under the Judges Act or the lieutenant governor of a province,
    3. an officer, director or employee of any federal board, commission or other tribunal, as defined in subsection 2(1) of the Federal Courts Act,
    4. a member of the Canadian Forces, and
    5. a member of the Royal Canadian Mounted Police;
  2. members of the legislature of a province or persons on the staff of such members;
  3. employees of the government of a province;
  4. members of a council or other statutory body charged with the administration of the civil or municipal affairs of a city, town, municipality or district, persons on the staff of such members or officers or employees of a city, town, municipality or district;
  5. members of the council of a band, as defined in subsection 2(1) of the Indian Act, or of the council of an Indian band established by an Act of Parliament, persons on their staff or employees of such a council;
  6. members of an aboriginal government or institution that exercises jurisdiction or authority under a self-government agreement, or under self-government provisions contained in a land claims agreement, given effect by or under an Act of Parliament, persons on the staff of those members or employees of that government or institution;
  7. an officer or employee of an entity that represents the interests of First Nations, the Inuit or the Métis. (titulaire d’une charge publique)

Application

5 This section applies to any of the following political or governmental processes in Canada:

  1. federal political or governmental processes;
  2. provincial or territorial political or governmental processes;
  3. municipal political or governmental processes;
  4. the political or governmental processes of
    1. a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982, or
    2. any other entity that represents the interests of First Nations, the Inuit or the Métis.

Clause 53-D (Subsection 20.4)

Context

Analysis

Clause 54 - Subsections 22(1) and (2) Security of Information Act

Previous

Preparatory acts

22 (1) Every person commits an offence who, for the purpose of committing an offence under subsection 16(1) or (2), 17(1), 19(1) or 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including

Punishment

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years.

Proposal

54 (1) The portion of subsection 22(1) of the Act before paragraph (a) is replaced by the following:

Preparatory acts

22 (1) Every person commits an offence who, for the purpose of committing an offence under this Act, other than under subsection 13(1) or 18(1), does anything that is directed towards or done in preparation of the commission of the offence, including

(2) Subsection 22(2) of the Act is replaced by the following:

Punishment

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

Context

Analysis

Clause 55 - Schedule 1 Security of Information Act

Previous

N/A

Proposal

55 The schedule to the Act is numbered as Schedule 1.

Context

This provision would change the name of the existing schedule to Schedule 1.

Analysis

With the proposed changes there would be two Schedules, the second is specific to the Department of National Defence and the Canadian Armed Forces. As a result, the existing schedule is being renamed Schedule 1.

Clause 56 - Schedule 2 Security of Information Act

Previous

N/A

Proposal

56 The Act is amended by adding, after Schedule 1, the Schedule 2 set out in Schedule 2 to this Act.

Context

This provision adds the new Schedule 2 to the Act.

Analysis

The new Schedule would reflect the addition of the Department of National Defence and the Canadian Armed Forces (DND/CAF) to the organizations that can permanently bind all individuals who are part of specific groups within their organizations to secrecy. A separate schedule would be created on the request of DND/CAF to allow for all of the DND/CAF groups to appear together in one dedicated schedule.

Clause 57 - Amendments by reference to Foreign Interference and Security of Information Act

Previous

N/A

Proposal

Terminology Changes

Replacement of “Security of Information Act” — Acts

57 (1) Every reference to the “Security of Information Act” is replaced by a reference to the “Foreign Interference and Security of Information Act” in the following provisions:

  1. in the Canada Evidence Act,
    1. subsection 38.13(1), and
    2. subsections 38.131(8) to (10);
  2. in the Citizenship Act,
    1. subparagraph 5(5)(f)(iii), and
    2. paragraphs 22(4)(g) and (h);
  3. subparagraphs 51(2)(a)(ii) and (b)(ii) of the Conflict of Interest Act,
  4. in the Criminal Code,
    1. paragraph (j) of the definition offencein section 183,
    2. paragraph 486.5(2.1)(d), and
    3. the portion of paragraph (c.1) of the definition primary designated offencein section 487.04 before subparagraph (i);
  1. section 7.2 of the Export and Import Permits Act,
  2. subparagraph 2(1)(a)(ii) of the Identification of Criminals Act,
  3. paragraph 183.6(3)(d) of the National Defence Act,
  4. subsection 20(6) of the Patent Act,
  5. in the Royal Canadian Mounted Police Act,
    1. paragraphs (d) and (e) of the definition privileged informationin subsection 45.4(1),
    2. paragraph 45.45(1)(b), and
    3. subsection 45.5(2);
  6. in the Visiting Forces Act,
    1. the portion of section 20 before paragraph (a), and
    2. section 21;
  7. in the Federal Public Sector Labour Relations Act,
    1. (i) subsection 238.09(2), and (ii) subsection 238.29(2);
  8. in the Public Servants Disclosure Protection Act,
    1. section 17, and
    2. paragraph 49(1)(c); and
  9. in the National Security and Intelligence Committee of Parliamentarians Act,
    1. subsection 12(1), and
    2. paragraph 16(1)(a).

Other references — Acts

(2) Unless the context requires otherwise, every reference to the “Security of Information Act” in any provision of an Act of Parliament, other than a provision referred to in subsection (1), is to be read as a reference to the “Foreign Interference and Security of Information Act”.

Replacement of “Security of Information Act” — Regulations

(3) Every reference to the “Security of Information Act” is replaced by a reference to the “Foreign Interference and Security of Information Act” in the following provisions:

  1. section 24 of the Military Rules of Evidence;
  2. section 2 of the Grosse Isle, P.Q., Prohibited Place Order;
  3. section 3 of the Exempt Personal Information Bank Order, No. 13 (RCMP);
  4. section 3 of the Exempt Personal Information Bank Order, No. 14 (CSIS); and
  5. section 3 of the Exempt Personal Information Bank Order, No. 25 (RCMP).

Other references — Regulations

(4) Unless the context requires otherwise, every reference to the “Security of Information Act” in any provision of a regulation, as defined in section 2 of the Statutory Instruments Act, made under an Act of Parliament, other than a provision referred to in subsection (3), is to be read as a reference to the “Foreign Interference and Security of Information Act”.

Context

Analysis

The name of the Act would change and so references to it must also be changed.

Context

Analysis

The name of the Act would change and so references to it must also be changed.

Clause 58 - Paragraph 183.6(3)(c) National Defence Act

Previous

Offences

(3) For the purpose of subsection (2), an offence is any of the following:

  1. an offence punishable under section 130 that is an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13 of the Criminal Code or that is a serious offence committed for the benefit of, at the direction of, or in association with a criminal organization;
  2. a terrorism offence;
  3. an offence punishable under section 130 that is an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act;
  4. an offence punishable under section 130 that is an offence under subsection 21(1) or section 23 of the Security of Information Act and that is committed in relation to an offence referred to in paragraph (c).

Proposal

Consequential Amendments

183.6(3)(c) of the National Defence Act is replaced by the following:

(c) an offence punishable under section 130 that is an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1), 20.1(1), 20.2(1), 20.3(1), 20.4(1) or 22(1) of the Foreign Interference and Security of Information Act;

Context

Analysis

Clause 59 - Paragraph 82(1)(d) National Security Act, 2017

Previous

82 (1) A reference to the former department in any of the following is deemed to be a reference to the new department:

  1. Schedule I to the Access to Information Act under the heading “Other Government Institutions”;
  2. Schedules I.1, V and VI to the Financial Administration Act;
  3. the schedule to the Privacy Act under the heading “Other Government Institutions”;
  4. the schedule to the Security of Information Act;
  5. Schedule 3 to the Security of Canada Information Disclosure Act;
  6. the National Security and Intelligence Review Agency Act; and
  7. the Intelligence Commissioner Act.

Proposal

59 Paragraph 82(1)(d) of the National Security Act, 2017 is replaced by the following:

(d) Schedule 1 to the Foreign Interference and Security of Information Act; Context

Analysis

Division 2 – Criminal Code

Clause 60 - Subsection 52(1) and (2)

Previous

Sabotage

52 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who does a prohibited act for a purpose prejudicial to

  1. the safety, security or defence of Canada, or
  2. the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada.

…

Idem

(4) No person does a prohibited act within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

Proposal

(1) The portion of subsection 52(1) of the Criminal Code before paragraph (a) is replaced by the following:

Sabotage

52 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who does a prohibited act with the intent to endanger

(2) Section 52 of the Act is amended by adding the following after subsection (4):

For greater certainty

(5) For greater certainty, no person commits an offence under subsection (1) if they do a prohibited act while participating in advocacy, protest or dissent but they do not intend to cause any of the harms referred to in paragraphs (1)(a) and (b).

Context

Analysis

Clause 61 - Subsection 52.1(1) to 52.3 Previous

N/A

Proposal

The Act is amended by adding the following after section 52:

Sabotage — essential infrastructure

52.1 (1) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who interferes with access to an essential infrastructure or causes an essential infrastructure to be lost, inoperable, unsafe or unfit for use with the intent to

  1. endanger the safety, security or defence of Canada;
  2. endanger the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada; or
  3. cause a serious risk to the health or safety of the public or any segment of the public.

Definition of essential infrastructure

(2) In this section, essential infrastructuremeans a facility or system, whether public or private, that provides or distributes services that are essential to the health, safety, security or economic well-being of persons in Canada, including the following:

  1. transportation infrastructure;
  2. information and communication technology infrastructure;
  3. water and wastewater management infrastructure;
  4. energy and utilities infrastructure;
  5. health services infrastructure;
  6. food supply and food services infrastructure;
  7. government operations infrastructure;
  8. financial infrastructure; and
  9. any other infrastructure prescribed by regulations.

Saving — stop work

(3) No person commits an offence under subsection (1) by reason only that

  1. they stop work as a result of the failure of their employer and themselves to agree on any matter relating to their employment;
  2. they stop work as a result of the failure of their employer and a bargaining agent acting on their behalf to agree on any matter relating to their employment; or
  3. they stop work as a result of their taking part in a combination of workers or employees for their own reasonable protection as workers or employees.

Saving — obtaining or communicating information

No person commits an offence under subsection (1) by reason only that they attend at or near or approach a dwelling-house or place for the purpose only of obtaining or communicating information.

For greater certainty

(5) For greater certainty, no person commits an offence under subsection (1) if they interfere with access to an essential infrastructure or cause an essential infrastructure to be lost, inoperable, unsafe or unfit for use while participating in advocacy, protest or dissent but they do not intend to cause any of the harms referred to in paragraphs (1)(a) to (c).

Regulations

(6) The Governor in Council may make regulations prescribing any infrastructure for the purpose of paragraph (i) of the definition essential infrastructure in subsection (2).

Context

Analysis

Clause 61 - Subsection 52.1(1) to 52.3

Previous

N/A

Proposal

Sabotage — device

52.2 (1) Every person commits an offence who makes, possesses, sells or distributes a device intending that it be used or knowing that it will be used, in whole or in part, to carry out an offence under subsection 52(1) or 52.1(1).

Punishment

(2) Every person who commits an offence under subsection (1)

  1. is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or
  2. is guilty of an offence punishable on summary conviction.

Definition of device

(3) For the purposes of this section, device includes a computer programas defined in subsection 342.1(2).

Attorney General’s consent

52.3 No proceeding for an offence under subsection 52(1), 52.1(1) or 52.2(1) shall be instituted without the Attorney General’s consent.

Context

Analysis

Clause 62 - Section 183

Previous Definitions

183 In this Part,

authorization means an authorization to intercept a private communication given under subsection 184.2(3), section 186 or subsection 188(2); (autorisation)

electro-magnetic, acoustic, mechanical or other device means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing; (dispositif électromagnétique, acoustique, mécanique ou autre)

intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof; (intercepter)

offence means an offence contrary to, any conspiracy or attempt to commit or being an accessory after the fact in relation to an offence contrary to, or any counselling in relation to an offence contrary to

  1. any of the following provisions of this Act, namely,
    1. section 47 (high treason),
    2. section 51 (intimidating Parliament or a legislature),
    3. section 52 (sabotage),

(iii.1) section 56.1 (identity documents),

  1. section 57 (forgery, etc.),

Proposal

62 The definition offencein section 183 of the Act is amended by adding the following after subparagraph (a)(iii):

(iii.01) section 52.1 (sabotage — essential infrastructure),

(iii.02) section 52.2 (sabotage — device),

Context

Analysis

Clause 63 - Paragraph 185(1.1)(a)

Previous

Application for authorization

185 (1) An application for an authorization to be given under section 186 shall be made ex parteand in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this section by …

Exception for criminal organizations and terrorist groups

(1.1) Notwithstanding paragraph (1)(h), that paragraph does not apply where the application for an authorization is in relation to

  1. an offence under section 467.11, 467.111, 467.12 or 467.13;
  2. an offence committed for the benefit of, at the direction of or in association with a criminal organization; or
  3. a terrorism offence.

…

Proposal

63 (1) Paragraph 185(1.1)(a) of the Act is replaced by the following:

(a) an offence under section 52, 52.1, 52.2, 467.11, 467.111, 467.12 or 467.13;

(2) Subsection 185(1.1) of the Act is amended by striking out “or” at the end of paragraph (b) and by adding the following after that paragraph:

(b.1) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act; or

Context

Analysis

Clause 64 - Paragraph 186(1.1)(a)

Previous

…

Exception for criminal organizations and terrorism offences

(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to

  1. an offence under section 467.11, 467.111, 467.12 or 467.13;
  2. an offence committed for the benefit of, at the direction of or in association with a criminal organization; or
  3. a terrorism offence.

…

Proposal

64 (1) Paragraph 186(1.1)(a) of the Act is replaced by the following:

(a) an offence under section 52, 52.1, 52.2, 467.11, 467.111, 467.12 or 467.13;

(2) Subsection 186(1.1) of the Act is amended by striking out “or” at the end of paragraph (b) and by adding the following after that paragraph:

(b.1) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act; or

Context

Analysis

Clause 65 - Paragraph 186.1(a)

Previous

Time limitation in relation to criminal organizations and terrorism offences

186.1 Notwithstanding paragraphs 184.2(4)(e) and 186(4)(e) and subsection 186(7), an authorization or any renewal of an authorization may be valid for one or more periods specified in the authorization exceeding sixty days, each not exceeding one year, where the authorization is in relation to

  1. an offence under section 467.11, 467.111, 467.12 or 467.13;
  2. an offence committed for the benefit of, at the direction of or in association with a criminal organization; or
  3. a terrorism offence.

Proposal

65 (1) Paragraph 186.1(a) of the Act is replaced by the following:

  1. an offence under section 52, 52.1, 52.2, 467.11, 467.111, 467.12 or 467.13;

(2) Section 186.1 of the Act is amended by striking out “or” at the end of paragraph (b) and by adding the following after that paragraph:

(b.1) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act; or

Context

Analysis

Clause 66 - Paragraph 196(5)(a)

Previous

Exception for criminal organizations and terrorist groups

…

(5) Notwithstanding subsections (3) and 185(3), where the judge to whom an application referred to in subsection (2) or 185(2) is made, on the basis of an affidavit submitted in support of the application, is satisfied that the investigation is in relation to

  1. an offence under section 467.11, 467.111, 467.12 or 467.13,
  2. an offence committed for the benefit of, at the direction of or in association with a criminal organization, or
  3. a terrorism offence, and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.

Proposal

Paragraph 196(5)(a) of the Act is replaced by the following:

    (a) an offence under section 52, 52.1, 52.2, 467.11, 467.111, 467.12 or 467.13,

Context

Analysis

Clause 67 - Paragraph 196.1(5)(a)

Previous

Exception — criminal organization or terrorism offence

Proposal

67 (1) Paragraph 196.1(5)(a) of the Act is replaced by the following:

(2) Subsection 196.1(5) of the Act is amended by striking out “or” at the end of paragraph and by adding the following after that paragraph

(b.1) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act; or

Context

Analysis

Clause 68 - Paragraph 462.48(1.1)(c)

Previous

Disclosure of income tax information

(1.1) The Attorney General may make an application in accordance with subsection (2) for an order for disclosure of information under subsection (3), for the purposes

of an investigation in relation to

  1. a designated substance offence;
  2. an offence against subsection 119(1), section 120, subsection 121(1) or (2), section 122 or subsection 123(1) or (2), or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

(b.1) an offence against subsection 279.01(1), 279.011(1) or 279.02(1) or (2) or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

(b.2) an offence against subsection 346(1) or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

(b.3) an offence against paragraph 380(1)(a) or subsection 380(2) or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;

  1. an offence against section 467.11, 467.111, 467.12 or 467.13, or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence;
  2. a terrorism offence;
  3. an offence against subsection 3(1) of the Corruption of Foreign Public Officials Act, or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence; or
  4. an offence against section 354, 355.2, 355.4 or 462.31 — or a conspiracy or attempt to commit, or being an accessory after the fact in relation to such an offence — if the offence is alleged to have been committed in relation to any property, thing or proceeds obtained or derived directly or indirectly as a result of
    1. the commission in Canada of an offence referred to in any of paragraphs (a) to (e), or
    2. an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence referred to in any of those paragraphs.

Proposal

Paragraph 462.48(1.1)(c) of the Act is replaced by the following:

Context

Analysis

Clause 69 - Paragraph 486.5(2.1)(c)

Previous Offences

s. 486.5

…

(2.1) The offences for the purposes of subsection (2) are

  1. an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
  2. a terrorism offence;
  3. an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
  4. an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

Proposal

69 Paragraph 486.5(2.1)(c) of the Act is replaced by the following:

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1), 20.1(1), 20.2(1), 20.3(1), 20.4(1) or 22(1) of the Foreign Interference and Security of Information Act; or

Context

Analysis

Clause 70 - Subparagraph (c.1)(ii) of the Criminal Code

Previous Forensic DNA Analysis Definitions

487.04 In this section and in sections 487.05 to 487.0911,

…

primary designated offence means

(a) an offence under any of the following provisions, namely,

…

(c.1) an offence under any of the following provisions of the Security of Information Act, namely,

  1. section 6 (approaching, entering, etc., a prohibited place),
  2. subsection 20(1) (threats or violence), and
  3. subsection 21(1) (harbouring or concealing), and

…

Proposal

(1) Subparagraph (c.1)(ii) of the definition primary designated offencein section 487.04 of the Act is replaced by the following:

(2) The definition secondary designated offence in section 487.04 of the Act is amended by adding the following after subparagraph (c)(i):

(i.0001) subsection 52.1(1) (sabotage — essential infrastructure),

(i.0002) subsection 52.2(1) (sabotage — device),

Context

Analysis

Clause 71 - Paragraph 515 of the Criminal Code

Previous

Condition prohibiting possession of firearms, etc.

(4.1) When making an order under subsection (2), in the case of an accused who is charged with

…

Offences

(4.3) The offences for the purposes of subsection (4.2) are

…

(d) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act.

Order of detention - Reverse onus

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged

  1. with an indictable offence, other than an offence listed in section 469,

…

  1. that is an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act,
  2. that is an offence under subsection 21(1) or 22(1) or section 23 of the Security ofInformation Act committed in relation to an offence referred to in subparagraph (iv),

Proposal

71 (1) Paragraph 515(4.1)(e) of the Act is replaced by the following:

    (e) an offence under subsection 20(1), 20.1(1), 20.2(1),20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of that Act,

(2) Paragraph 515(4.3)(d) of the Act is replaced by the following:

    (d) an offence under subsection 20(1), 20.1(1), 20.2(1),20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of that Act,

(3) Subparagraphs 515(6)(a)(iv) and (v) of the Act are replaced by the following:

(iv) that is an offence under subsection 16(1) or (2),17(1), 19(1), 20(1), 20.1(1), 20.1(1), 20.3(1), 20.4(1) or 22(1) of the Foreign Interference and Security of Information Act,

(v) that is an offence under subsection 21(1) or section 23 of the Foreign Interference and Security of Information Act committed in relation to an of-fence referred to in subparagraph (iv).

Context

Analysis

Division 3 – Coordinating Amendments and Coming Into Force clause 72 – Coordinating Amendments

Previous

N/A

Proposal

Coordinating Amendments

72 On the first day on which both subsection 13.3(1) of An Act to amend certain Acts and to make certain consequential amendments (firearms), chapter 32 of the Statutes of Canada, 2023, and subsection 71(1) of this Act are in force, paragraph 515(4.1)(e) of the English version of the Criminal Code is replaced by the following:

(e) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of that Act,

Context

“(e) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of that Act,”

Analysis

Clause 73 - Coordinating amendments

Previous

N/A

Proposal

Coordinating Amendments

73 If a provision of any of the following Acts (in this section referred to as the “other Act”) that amends subsection 515(4.1) of the Criminal Code comes into force or, in the case of a coordinating amendment, produces its effects on or after the day on which subsection 71(1) comes into force, on the day on which that provision of the other Act comes into force or produces its effects, as the case may be, subsection 515(4.1) of the French version of the Criminal Code is amended by replacing “d’une infraction visée au paragraphe 20(1) de la Loi sur la protection de l’information, ou d’une infraction visée aux paragraphes 21(1) ou 22(1) ou à l’article 23 de cette loi commise à l’égard d’une infraction visée au paragraphe 20(1)” with “d’une infraction visée aux paragraphes 20(1), 20.1(1), 20.2(1), 20.3(1) ou 20.4(1) de la Loi sur l’ingérence étrangère et la protection de l’information, ou d’une infraction visée aux paragraphes 21(1) ou 22(1) ou à l’article 23 de cette loi commise à l’égard d’une infraction visée aux paragraphes 20(1), 20.1(1), 20.2(1), 20.3(1) ou 20.4(1)”:

  1. An Act to amend certain Acts and to make certain consequential amendments (firearms), chapter 32 of the Statutes of Canada, 2023; or
  2. An Act to amend the Criminal Code (coercive control of intimate partner), if Bill C-332 introduced in the 1st session of the 44th Parliament receives royal assent.

Context

“d’une infraction visée au paragraphe 20(1) de la Loi sur la protection de l’information, ou d’une infraction visée aux paragraphes 21(1) ou 22(1) ou à l’article 23 de cette loi commise à l’égard d’une infraction visée au paragraphe 20(1)” with “d’une infraction visée aux paragraphes 20(1), 20.1(1), 20.2(1), 20.3(1) ou 20.4(1) de la Loi sur l’ingérence étrangère et la protection de l’information, ou d’une infraction visée aux paragraphes 21(1) ou 22(1) ou à l’article 23 de cette loi commise à l’égard d’une infraction visée aux paragraphes 20(1), 20.1(1), 20.2(1), 20.3(1) ou 20.4(1)”

Analysis

Clause 74 - Coordinating Amendments

Previous

N/A

Proposal

Coordinating Amendments

74 (1) Subsections (2) to (5) apply if Bill C-20, introduced in the 1st session of the 44th Parliament and entitled the Public Complaints and Review Commission Act (in this section referred to as the “other Act”), receives royal assent.

(2) If section 55 of this Act comes into force before section 125 of the other Act, then that section 125 is replaced by the following:

125 Schedule 1 to the Foreign Interference and Security of Information Act is amended by striking out the following:

Civilian Review and Complaints Commission for the Royal Canadian Mounted Police

Commission civile d’examen et de traitement des plaintes relatives à la Gendarmerie royale du Canada

(3) If section 55 of this Act comes into force on the same day as section 125 of the other Act, then that section 125 is deemed to have come into force before that section 55.

(4) If section 55 of this Act comes into force before section 126 of the other Act, then that section 126 is replaced by the following:

126 Schedule 1 to the Act is amended by adding the following in alphabetical order: Public Complaints and Review Commission

Commission d’examen et de traitement des plaintes du public

(5) If section 55 of this Act comes into force on the same day as section 126 of the other Act, then that section 126 is deemed to have come into force before that section 55.

Context

Public Complaints and Review Commission

Commission d’examen et de traitement des plaintes du public

Analysis

Clause 75 – Coming into force

Previous

N/A

Proposal

75 This Part, other than sections 72 to 74, comes into force on the 60th day after the day on which this Act receives royal assent.

Context

Analysis

Part 3: Measures relating to the protection of information

Division 1 – Canada Evidence Act

Clause 76 - Section 36.1 of the Canada Evidence Act

Previous

Definition of official

36.1 In sections 37 to 38.16, official has the same meaning as in section 118 of theCriminal Code.

Proposal

76 Section 36.1 of the Canada Evidence Act is replaced by the following: Definition of official

36.1 In sections 37 to 38.43, official has the same meaning as in section 118 of the Criminal Code.

Context

Analysis

Clause 77 - Section 37.1 of the Canada Evidence Act

Previous

Appeal to court of appeal

37.1 (1) An appeal lies from a determination under any of subsections 37(4.1) to (6)

  1. to the Federal Court of Appeal from a determination of the Federal Court; or
  2. to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province.

Limitation period for appeal

(2) An appeal under subsection (1) shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances.

Proposal

77 (1) The portion of subsection 37.1(1) of the Act before paragraph (a) is replaced by the following:

Appeal to court of appeal

37.1 (1) Subject to subsection (1.1), an appeal lies from a determination under any of subsections 37(4.1) to (6)

(2) Subsection 37.1(2) of the Act is replaced by the following:

Limitation — person charged with offence

(1.1) A person who is charged with an offence may appeal a determination referred to in subsection (1) that is made in relation to a criminal trial or other criminal proceeding only if they are convicted of the offence.

Limitation period for appeal

(2) An appeal under this section shall be brought

  1. in the case of an appeal permitted under subsection (1.1), after conviction and within the same period in which the accused may appeal from their conviction or any further time that the court referred to in subsection (1) considers appropriate in the circumstances; or
  2. in any other case, within 15 days after the day on which the determination appealed from is made or any further time that the court referred to in subsection (1) considers appropriate in the circumstances.

Exceptional circumstances

(3) Despite subsection (1.1) and paragraph (2)(a), the court referred to in subsection (1) may, on application by the person charged with the offence, permit the appeal to be brought before conviction if the court is satisfied that there are exceptional circumstances that justify doing so.

Context

Analysis

Clause 78 - Title before section 38 of the Canada Evidence Act

Previous

International Relations and National Defence and National Security

Proposal

78 The Act is amended by adding the following before section 38:

Provisions of General Application

Context

Analysis

Clause 79 - Section 38 of the Canada Evidence Act

Previous Definitions

38 The following definitions apply in this section and in sections 38.01 to 38.15.

…

proceeding means a proceeding before a court, person or body with jurisdiction to compel the production of information. (instance)

…

Proposal

Context

Analysis

Clause 80 - Subsection 38.03(3) of the Canada Evidence Act

Previous Notice

(3) The Attorney General of Canada shall, within 10 days after the day on which he or she first receives a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under section 38.01 about that information of his or her decision with respect to disclosure of the information.

Proposal

80 Subsection 38.03(3) of the Act is replaced by the following:

Notice

(3) The Attorney General of Canada shall, within 30 days after the day on which they first receive a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under section 38.01 about that information of their decision with respect to disclosure of the information.

Context

Analysis

Clause 81 - Subsection 38.09(2) of the Canada Evidence Act

Previous

Limitation period for appeal

(2) An appeal shall be brought within 10 days after the day on which the order is made or within any further time that the Court considers appropriate in the circumstances.

Proposal

81 Section 38.09 of the Act is replaced by the following:

Appeal to Federal Court of Appeal

38.09 (1) Subject to subsection (1.1), an order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal.

Limitation — person charged with offence

(1.1) A person who is charged with an offence may appeal an order referred to in subsection (1) that is made in relation to a criminal trial or other criminal proceeding only if they are convicted of the offence.

Limitation period for appeal

(2) An appeal under this section shall be brought

  1. in the case of an appeal permitted under subsection (1.1), after conviction and within the same period in which the accused may appeal from their conviction or any further time that the Court considers appropriate in the circumstances; or
  2. in any other case, within 15 days after the day on which the order is made or any further time that the Court considers appropriate in the circumstances.

Exceptional circumstances

(3) Despite subsection (1.1) and paragraph (2)(a), the Court may, on application by the person charged with the offence, permit the appeal to be brought before conviction if the Court is satisfied that there are exceptional circumstances that justify doing so.

Context

Analysis

Clause 82 - Paragraph 38.1(a) of the Canada Evidence Act

Previous

38.1 Notwithstanding any other Act of Parliament,

(a) an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 10 days after the day on which the judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances; and …

Proposal

82 Paragraph 38.1(a) of the Act is replaced by the following:

  1. an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 15 days after the day on which the judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances; and

Context

Analysis

Clause 83 - Subsection 38.131(4) of the Canada Evidence Act

Previous

Single judge

Proposal

83 Subsection 38.131(4) of the Act is replaced by the following:

Single judge

(4) Despite section 16 of the Federal Courts Act, for the purposes of the application, the Federal Court of Appeal consists of a single judge of that Court.

Context

Analysis

Clause 84 - New Secure Administrative Review Proceedings (SARP) regime under the Canada Evidence Act

Previous

NIL.

Proposal

84 The Act is amended by adding the following after section 38.17:

Secure Administrative Review Proceedings

Definitions

38.2 The following definitions apply in this section and in sections 38.21 to 38.45.

federal proceeding means

  1. an application for judicial review or an appeal in the Federal Court of a decision of a federal board, commission or other tribunal, as defined in subsection 2(1) of the Federal Courts Act;
  2. an appeal in the Federal Court of Appeal from a decision of the Federal Court in a proceeding referred to in paragraph (a);
  3. an application for judicial review or an appeal in the Federal Court of Appeal of a decision of a federal board, commission or other tribunal referred to in paragraph (a); or
  4. a proceeding referred to in section 6 or 11 of the Charities Registration (Security Information) Act.

It does not include any proceeding in the Federal Court or the Federal Court of Appeal that is in respect of a matter under the Immigration and Refugee Protection Act and does not include a proceeding in which information may be disclosed to either of those courts for a purpose listed in the schedule.(instance fédérale)

judge means

  1. in relation to a federal proceeding in the Federal Court of Appeal, not fewer than three judges of that court, each of whom is either the Chief Justice or a judge designated by the Chief Justice to conduct hearings under section 38.25, sitting together in an uneven number; and
  2. in relation to a federal proceeding in the Federal Court, the Chief Justice of that court or a judge designated by the Chief Justice to conduct hearings under section 38.25. (juge)

non-governmental party means a party to a federal proceeding who is neither the Attorney General of Canada nor represented by the Attorney General of Canada. (partie non gouvernementale)

participant means a person who, in connection with a federal proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information. (participant)

potentially injurious information has the same meaning as in section 38. (renseignements potentiellement préjudiciables)

sensitive information has the same meaning as in section 38. (renseignements sensibles)

special counsel means a person appointed as a special counsel under section 38.34. (conseiller juridique spécial)

Notice to Attorney General of Canada

38.21 (1) Every participant who, in connection with a federal proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information must, as soon as possible, notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the federal proceeding.

During federal proceeding

(2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a federal proceeding must raise the matter with the person presiding at the federal proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the federal proceeding must ensure that the information is not disclosed other than in accordance with this Act.

Notice of disclosure from official

(3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a federal proceeding may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the federal proceeding.

During federal proceeding

(4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed in the course of a federal proceeding may raise the matter with the person presiding at the federal proceeding. If the official raises the matter, they must notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the federal proceeding must ensure that the information is not disclosed other than in accordance with this Act.

Exception

(5) This section does not apply when

  1. the information is disclosed by a person to their lawyer in connection with a federal proceeding, if the information is relevant to that proceeding;
  2. the information is disclosed to enable the Attorney General of Canada, special counsel, a judge, or a court hearing an appeal from an order of the judge, to exercise their powers and perform their duties and functions under this section and sections 38.22 to 38.41 and 38.43; or
  3. disclosure of the information is authorized by the government institution in which or for which the information was produced or, if the information was not produced in or for a government institution, the government institution in which it was first received.

Exception

(6) Subsections (1) and (2) do not apply to a participant if a government institution referred to in paragraph (5)(c) advises the participant that it is not necessary, in order to prevent disclosure of the information referred to in that paragraph, to give notice to the Attorney General of Canada under subsection (1) or to raise the matter under subsection (2) with the person presiding at the federal proceeding.

Disclosure prohibited

38.22(1) Subject to subsection 38.21(5), it is prohibited for a person to disclose in connection with a federal proceeding

  1. information about which notice is given under any of subsections 38.21(1) to (4);
  2. the fact that notice is given to the Attorney General of Canada under any of subsections 38.21(1) to (4);
  3. the fact that a motion is made under section 38.25 or that an appeal of an order made under any of subsections 38.26(1) to (3) in connection with the motion is instituted; or
  4. the fact that an agreement is entered into under section 38.24 or subsection 38.25(6).

Exceptions

(2) Disclosure of the information or the facts referred to in subsection (1) is not prohibited if

  1. The Attorney General of Canada authorizes the disclosure in writing under section 38.23 or by agreement under section 38.24 or subsection 38.25(6); or
  2. a judge authorizes the disclosure under subsection 38.26(1) or (2) or a court hearing an appeal from the order of the judge authorizes the disclosure, and either the time provided to appeal the order or the appeal court’s judgment has expired or no further appeal is available.

Authorization by Attorney General of Canada

38.23 (1) The Attorney General of Canada may, at any time and subject to any conditions that they consider appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.22(1).

Notice

(2) The Attorney General of Canada must, within 30 days after the day on which they first receive a notice about information under any of subsections 38.21(1) to (4), notify in writing every person who provided notice under those subsections about that information of their decision with respect to disclosure of the information.

Disclosure agreement

38.24 (1) The Attorney General of Canada and a person who has given notice under subsection 38.21(1) or (2) and is not required to disclose information but wishes, in connection with a federal proceeding, to disclose any facts referred to in paragraphs 38.22(1)(b) to (d) or information about which the person gave the notice, or to cause that disclosure, may, before the person brings a motion under paragraph 38.25(2)(c), enter into an agreement that permits the disclosure of part of the facts or in- formation or disclosure of the facts or information subject to conditions.

No motion

(2) If an agreement is entered into under subsection (1), the person may not bring a motion under paragraph 38.25(2)(c) with respect to the information about which they gave notice to the Attorney General of Canada under subsection 38.21(1) or (2).

Motion — Attorney General of Canada

38.25 (1) The Attorney General of Canada may, at any time and under any circumstances during a federal proceeding, bring a motion to a judge for an order with respect to the disclosure of information about which notice was given under any of subsections 38.21(1) to (4).

Motion — general

(2) If, with respect to information about which notice was given under any of subsections 38.21(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.23(2) or, other than by an agreement under section 38.24, does not authorize the disclosure of the information or authorizes the disclosure of only part of the information or authorizes the disclosure subject to any conditions,

  1. the Attorney General of Canada must bring a motion to a judge for an order with respect to disclosure of the information if a person who gave notice under subsection 38.21(1) or (2) is a witness;
  2. a person, other than a witness, who is required to disclose information in connection with a federal proceeding must bring a motion to a judge for an order with respect to disclosure of the information; and
  3. a person who is not required to disclose information in connection with a federal proceeding but who wishes to disclose it or to cause its disclosure may bring a motion to a judge for an order with respect to disclosure of the information.

Notice to Attorney General of Canada

(3) A person who makes a motion under paragraph (2)(b) or (c) must provide notice of the motion to the Attorney General of Canada.

Court records

(4) Subject to paragraph (5)(b), a motion under this section is confidential. During the period when a motion is confidential, the Chief Administrator of the Courts Administration Service may, subject to section 38.31, take any measure that they consider appropriate to protect the confidentiality of the motion and the information to which it relates.

Procedure

(5) As soon as they are seized of a motion under this section, the judge

  1. must hear the representations of the Attorney General of Canada with respect to making the motion public;
  2. must, if they decide that the motion should be made public, make an order to that effect;
  3. must hear the representations of the Attorney General of Canada concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject and concerning the per- sons who should be given notice of any hearing of the matter;
  4. must decide whether it is necessary to hold any hearing of the matter;
  5. if they decide that a hearing should be held, must
    1. determine who should be given notice of the hearing,
    2. order the Attorney General of Canada to notify those persons, and
    3. determine the content and form of the notice; and
  6. may, if they consider it appropriate in the circumstances, give any person the opportunity to make representations.

Disclosure agreement

(6) After the judge is seized of a motion made under paragraph (2)(c) or, in the case of an appeal from an order of the judge made under any of subsections 38.26(1) to (3) in connection with that motion, before the appeal is disposed of,

  1. the Attorney General of Canada and the person who made the motion may enter into an agreement that permits the disclosure of part of the facts referred to inparagraphs 38.22(1)(b) to (d) or part of the information or disclosure of the facts or information subject to conditions; and
  2. if an agreement is entered into, the judge’s consideration of the motion or any hearing or appeal must be terminated.

Termination

(7) Subject to subsection (6), after the judge is seized of a motion made under this section — or, in the case of an appeal from an order of the judge made under any of subsections 38.26(1) to (3), before the appeal is disposed of — and if the Attorney General of Canada authorizes the disclosure of all or part of the information or withdraws conditions to which the disclosure is subject, the judge’s consideration of the motion or any hearing or appeal must be terminated in relation to that information, to the extent of the authorization or the withdrawal.

Disclosure order

38.26 (1) Unless the judge concludes that the disclosure of the information or facts referred to in subsection 38.22(1) would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information or facts.

Disclosure — conditions

(2) If the judge concludes that the disclosure of the information or facts would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations 5 or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all or part of the information or facts, a summary of the information or a written admission of facts relating to the information.

Order confirming prohibition

(3) If the judge does not authorize disclosure under subsection (1) or (2), the judge must, by order, confirm the prohibition of disclosure.

When determination takes effect

(4) 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.

Evidence

(5) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base their decision on that evidence.

Notice of order

38.27 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.26(1) to (3) to any person who, in the opinion of the judge, should be notified.

Appeal to Federal Court of Appeal

38.28 (1) An order made by a judge of the Federal Court under any of subsections 38.26(1) to (3) may be appealed to the Federal Court of Appeal.

Limitation period for appeal

(2) An appeal must be brought within 15 days after the day on which the order is made or within any further time that the Federal Court of Appeal considers appropriate in the circumstances.

Limitation periods for appeals to Supreme Court of Canada

38.29 Despite any other Act of Parliament,

  1. an application for leave to appeal to the Supreme Court of Canada from an order made under any of subsections 38.26(1) to (3) by the Federal Court of Appeal, or from a judgment of the Federal Court of Appeal in an appeal of such an order made by the Federal Court, must be made within 15 days after the day on which the order or judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances; and
  2. if leave to appeal is granted, the appeal must be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the Supreme Court of Canada.

Special rules — hearing in private

38.3 (1) The judge conducting a hearing under subsection 38.25(5) or the court hearing an appeal of an order made under any of subsections 38.26(1) to (3) may make an order that the hearing be held, or the appeal be heard, in private.

Special rules — hearing in National Capital Region

(2) A hearing under subsection 38.25(5) or an appeal of an order made under any of subsections 38.26(1) to (3) must, at the request of the Attorney General of Canada, be held or heard, as the case may be, in the National Capital Region, as described in the schedule to the National Capital Act.

Ex parte representations

Ex parte representations — public hearing

(4) If a hearing under subsection 38.25(5) is held, or an appeal of an order made under any of subsections 38.26(1) to (3) is heard, in public, any ex parterepresentations made in that hearing or appeal must be made in private.

Protective order

38.31 (1) The judge conducting a hearing under subsection 38.25(5) or the court hearing an appeal of an order made under any of subsections 38.26(1) to (3) may make any order that the judge or the court considers appropriate in the circumstances to protect the confidentiality of any information to which the hearing or appeal relates.

Court records

(2) The court records relating to a hearing that is held, or an appeal that is heard, in private or to any ex parte representations are confidential. The judge or the court may order that the court records, or any part of them, relating to a private or public hearing or appeal be sealed and kept in a location to which the public has no access.

Judge seized

38.32 The judge who hears the motion brought under subsection 38.25(1) or (2) becomes seized of all matters in the federal proceeding.

Undisclosed information — federal proceeding

38.33 (1) In considering the merits of the federal proceeding, the judge may receive into evidence, and may base their decision on, any information the disclosure of which is prohibited as a result of the application of sections 38.21 to 38.26.

Representations and private hearing

(2) For the purposes of subsection (1), the judge may — or, if the Attorney General of Canada so requests, the judge must —

  1. receive ex parterepresentations; and
  2. conduct a hearing in private and in the absence of the non-governmental party and their counsel.

Procedure

(3) In conducting a hearing under paragraph (2)(b), the judge must

  1. deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
  2. without disclosing the information referred to in subsection (1), ensure that the non-governmental party to the federal proceeding is provided with a summary of the information that enables that party to be reasonably informed of the case; and
  3. at the request of the Attorney General of Canada, hold the hearing in the National Capital Region, as described in the schedule to the National Capital Act.

Decision

(4) The judge may base any decision on the information referred to in subsection (1) even if a summary of that information has not been provided to the non-governmental party.

Special counsel

38.34 (1) The judge, in consideration of the principles of fairness and natural justice, may appoint a special counsel for the purposes of

  1. a motion made under section 38.25 and the federal proceeding as a whole; and
  2. any appeal of the motion or of the federal proceeding.

(2) The special counsel may be appointed from the list of persons referred to in subsection 85(1) of the Immigration and Refugee Protection Act.

Special counsel’s role

38.35 (1) A special counsel’s role is to protect the interests of the non-governmental party when information and other evidence is presented, or representations are made in private and in the absence of the non-governmental party and their counsel.

Responsibilities

(2) A special counsel may

  1. make oral and written representations with respect to the information or other evidence that has been filed with the court but has not been disclosed to the non-governmental party and their counsel;
  2. participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in private and in the absence of the non-governmental party and their counsel; and
  3. exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the non-governmental party.

For greater certainty

(3) For greater certainty, the special counsel is not a party to the federal proceeding and the relationship between the special counsel and the non-governmental party is not that of lawyer and client.

Protection of communications with special counsel

(4) However, a communication between the non-governmental party or their counsel and the special counsel that, if the relationship were one of lawyer and client, would be subject to solicitor-client privilege or the professional secrecy of advocates is deemed to be subject to that privilege or professional secrecy. For greater certainty, in respect of that communication, the special counsel is not a compellable witness in any proceeding.

Immunity

38.36 A special counsel is not personally liable for anything they do or omit to do in good faith under this Act.

Obligation to provide information

38.37 The Attorney General of Canada must, within a period set by the judge, provide the special counsel with a copy of the information or other evidence that has been filed with the court in relation to the federal proceeding, including any information or other evidence that is not disclosed to the non-governmental party and their counsel.

Restrictions on communications — special counsel

38.38 (1) After the information or other evidence is received by the special counsel, the special counsel may, during the remainder of the federal proceeding and any appeal in respect of it, communicate with another person about the federal proceeding or the appeal only with the judge’s or appeal court’s authorization and subject to any conditions that the judge or appeal court considers appropriate.

Restrictions on communications — other persons

(2) If the special counsel is authorized to communicate with a person, the judge or appeal court may prohibit that person from communicating with anyone else about the federal proceeding or appeal during its remainder or may impose conditions with respect to such a communication during that period.

Disclosure and communication prohibited

38.39 With the exception of communications authorized by a judge or disclosures permitted under section 38.22, it is prohibited for a person to

  1. disclose information or other evidence that is disclosed to them under section 38.37 or 38.38 and that is treated as confidential by the judge; or
  2. communicate with another person about the content of any part of a federal proceeding, or an appeal in respect of it, that is heard in private and in the absence of the non-governmental party and their counsel.

Fairness

38.4 (1) The judge may, if they are of the opinion that they are unable to conduct a fair hearing because the non-governmental party is not reasonably informed of the case, make an order granting an appropriate remedy to the non-governmental party.

Potential orders

(2) The orders that may be made under subsection (1) include, but are not limited to, the following:

  1. an order allowing or dismissing the federal proceeding; and
  2. an order finding against any party on any issue relating to information the disclosure of which is prohibited.

For greater certainty

(3) For greater certainty, a remedy referred to in subsection (1) must not include the disclosure of information ordered not to be disclosed under subsection 38.26(3) or 38.41(4).

Certificate of Attorney General of Canada

38.41 (1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a federal proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entityas defined in subsection 2(1) of the Foreign Interference and Security of Information Act or for the purpose of protecting national defence or national security. The certificate may only be issued after an order or decision that would result in the disclosure of the information to be subject to the certificate has been made under this or any other Act of Parliament.

Service of certificate

(2) The Attorney General of Canada must cause a copy of the certificate to be served on

  1. the person presiding or designated to preside at the federal proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside;
  2. every party to the federal proceeding;
  3. every person who gives notice under section 38.21 in connection with the federal proceeding;
  4. every person who, in connection with the federal proceeding, may disclose, is required to disclose or may cause the disclosure of the information about which the Attorney General of Canada has received notice under section 38.21;
  5. every party to a hearing under subsection 38.25(5) or to an appeal of an order made under any of subsections 38.26(1) to (3) in relation to the information;
  6. any court that hears an appeal from an order made under any of subsections 38.26(1) to (3) in relation to the information; and
  7. any other person who, in the opinion of the Attorney General of Canada, should be served.

Filing of certificate

(3) The Attorney General of Canada must cause a copy of the certificate to be filed in the registry of the Federal Court of Appeal or the Federal Court, as the case may be, and the registry of any court that hears an appeal from an order made under any of subsections 38.26(1) to (3).

Effect of certificate

(4) If the Attorney General of Canada issues a certificate, then, despite any other provision of this Act, disclosure of the information is prohibited in accordance with the terms of the certificate.

Statutory Instruments Act does not apply

(5) The Statutory Instruments Act does not apply to a certificate issued under subsection (1).

Publication

(6) The Attorney General of Canada must, without delay after a certificate is issued, cause the certificate to be published in the Canada Gazette.

Restriction

(7) The certificate and any matters arising out of it are not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with section 38.42.

Expiry

(8) The certificate expires 10 years after the day on which it is issued and may be reissued.

Application for review of certificate

38.42 (1) A party to the federal proceeding referred to in section 38.41 may apply to the Federal Court of Appeal for an order varying or cancelling a certificate issued under that section on the grounds referred to in subsection (7) or (8), as the case may be.

Notice to Attorney General of Canada

(2) The applicant must give notice of the application to the Attorney General of Canada.

Single judge

(3) Despite paragraph (a) of the definition judgein section 38.2 and section 16 of the Federal Courts Act, for the purposes of the application, the Federal Court of Appeal consists of a single judge of that Court.

Admissible information

(4) In considering the application, the judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base a determination made under any of subsections (7) to (9) on that evidence.

Special rules and protective order

(5) Sections 38.3 and 38.31 apply, with any necessary modifications, to an application made under subsection (1).

Expedited consideration

(6) The judge must consider the application as soon as reasonably possible, but not later than 10 days after the application is made under subsection (1).

Varying certificate

(7) If the judge determines that some of the information subject to the certificate does not relate either to information obtained in confidence from, or in relation to, a foreign entity, or to national defence or national security, the judge must make an order varying the certificate accordingly.

Cancelling certificate

(8) If the judge determines that none of the information subject to the certificate relates to information obtained in confidence from, or in relation to, a foreign entity, or to national defence or national security, the judge must make an order cancelling the certificate.

Confirming certificate

(9) If the judge determines that all of the information subject to the certificate relates to information obtained in confidence from, or in relation to, a foreign entity, or to national defence or national security, the judge must make an order confirming the certificate.

Determination is final

(10) Despite any other Act of Parliament, a determination of a judge under any of subsections (7) to (9) is final and is not subject to review or appeal by any court.

Publication

(11) If a certificate is varied or cancelled under this section, the Attorney General of Canada must, as soon as possible after the decision of the judge and in a manner that mentions the original publication of the certificate, cause to be published in the Canada Gazette

Definition of foreign entity

(12) In this section, foreign entity has the same meaning as in subsection 2(1) of the Foreign Interference and Security of Information Act.

Regulations

38.43 The Governor in Council may make any regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of sections 38.2 to 38.42, including regulations respecting the notices and certificates.

Annual report

38.44 The report referred to in section 38.17 must also set out the operation of section 38.41 for the previous year and include the number of certificates issued under that section.

Rules

38.45 (1) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special counsel in federal proceedings before the court over which they preside. The rules are binding despite any rule of practice that would otherwise apply.

Composition of committees

(2) Each committee established is to be composed of the appropriate Chief Justice, the Attorney General of Canada or one or more representatives of the Attorney General of Canada, and one or more members of the bar of any province who have experience in a field of law relevant to federal proceedings. Each Chief Justice may also designate additional members of their committee.

Chief Justice to preside

(3) Each Chief Justice, or a member designated by them, is to preside over their committee.

Context

Analysis

Clause 85 - Amendment to Heading of the Canada Evidence Act Schedule

Previous Schedule

(Paragraph 38.01(6)(d) and subsection 38.01(8))

Proposal

85 The schedule to the Act is amended by replacing the references after the heading “schedule” with the following:

(Paragraph 38.01(6)(d), subsections 38.01(8) and 38.02(1.1) and section 38.2)

Context

Analysis

Clause 86 - Repeals in the Canada Evidence Act Schedule

Previous

Schedule

(Paragraph 38.01(6)(d) and subsection 38.01(8))

Designated Entities

  1. A judge of the Federal Court, for the purposes of section 21 of the Canadian SecurityIntelligence Service Act
  2. A judge of the Federal Court, for the purposes of sections 6 and 7 of the Charities Registration(Security Information) Act, except where the hearing is open to the public
  3. A judge of the Federal Court, the Federal Court of Appeal or the Immigration Division or Immigration Appeal Division of the Immigration and Refugee Board, for the purposes of sections 77 to 87.1 of the Immigration and Refugee Protection Act
  4. A judge of the Federal Court, for the purposes of section 16 of the Secure Air Travel Act

…

21 A judge of the Federal Court, for the purposes of sections 4 and 6 of the Prevention ofTerrorist Travel Act

…

Proposal

86 Items 2, 4 and 21 of the schedule to the Act are repealed.

Context

Analysis

Clause 87 - Subsection 69.1(1) of the Access to Information Act

Previous

Certificate under Canada Evidence Act

69.1 (1) Where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued before a complaint is filed under this Part in respect of a request for access to that information, this Part does not apply to that information.

Certificate following filing of complaint

(2) Notwithstanding any other provision of this Part, where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued after the filing of a complaint under this Part in relation to a request for access to that information, 

Proposal

87 (1) Subsection 69.1(1) of the Access to Information Act is replaced by the following: Certificate under Canada Evidence Act

69.1 (1) If a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued before a complaint is filed under this Part in respect of a request for access to that information, this Part does not apply to that information.

(2) The portion of subsection 69.1(2) of the Act before paragraph (a) is replaced by the following:

Certificate following filing of complaint

(2) Despite any other provision of this Part, if a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued after the filing of a complaint under this Part in relation to a request for access to that information,

Context

Analysis

Clause 88 - Section 83.039 of the Criminal Code

Previous

Judicial review

83.039 (1) The rules set out in subsection (2) apply to judicial review proceedings in respect of decisions made by the Public Safety Minister, the Minister of Foreign Affairs or the Minister of Citizenship and Immigration under sections 83.032 to 83.038.

Rules

(2) The following rules apply for the purposes of subsection (1):

  1. at any time during the proceeding, the judge must, on the request of the relevant Minister, hear submissions on evidence or other information in the absence of the public and of the applicant and their counsel if, in the judge’s opinion, the disclosure of the evidence or other information could be injurious to international relations, national defence or national security or could endanger the safety of any person;

(a.1) the judge may allow an amicus curiae who is appointed in respect of the proceeding to participate in a hearing under paragraph (a) and to review the evidence or other information that is the subject of the hearing;

  1. the judge must ensure the confidentiality of the evidence and other information provided by the relevant Minister 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;
  2. the judge must ensure that the applicant is provided with a summary of the evidence and other information available to the judge that enables the applicant to be reasonably informed of the reasons for the relevant Minister’s decision but that does not include anything that, in the judge’s opinion, would be injurious to international relations, national defence or national security or would endanger the safety of any person if disclosed;
  3. the judge must provide the applicant and the relevant Minister with an opportunity to be heard;
  4. the judge may base their decision on evidence or other information available to them even if a summary of that evidence or other information has not been provided to the applicant;

…

Proposal

87(1) Paragraphs 83.039(2)(a) to (c) of the Criminal Code are repealed.

(2) Paragraph 83.039(2)(e) of the Act is repealed.

(3) Section 83.039 of the Act is amended by adding the following after subsection (2):

For greater certainty

(2.1) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to the judicial review proceedings referred to in subsection (1).

Context

Analysis

Clause 89 - Subsection 83.05(6) of the Criminal Code

Previous Reference

(6) When an application is made under subsection (5), the judge shall, without delay

  1. examine, in private, any security or criminal intelligence reports considered in the making of the decision on whether the applicant should remain a listed entity and hear any other evidence or information that may be presented by or on behalf of the Minister and may, at his or her request, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant, if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person;
  2. provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information the disclosure of which would, in the judge’s opinion, injure national security or endanger the safety of any person;

…

Proposal

88 Paragraphs 83.05(6)(a) and (b) of the Act are repealed.

Context

Analysis

Clause 90 - Section 83.06 of the Criminal Code

Previous

Admission of foreign information obtained in confidence

83.06 (1) For the purposes of subsection 83.05(6), in private and in the absence of the applicant or any counsel representing it,

…

Return of information

(2) The information shall be returned to counsel representing the Minister and shall not be considered by the judge in making the determination under paragraph 83.05(6)(d), if

  1. the judge determines that the information is not relevant;
  2. the judge determines that the information is relevant but should be summarized in the statement to be provided under paragraph 83.05(6)(b); or
  3. the Minister withdraws the application.

…

Proposal

89 Section 83.06 of the Act is replaced by the following:

Return of information

83.06 (1) For the purposes of subsection 83.05(6), any information that is obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states and that is provided to the judge by the Minister of Public Safety and Emergency Preparedness shall be returned to counsel representing the Minister and shall not be considered by the judge in making the determination under paragraph 83.05(6)(d), if

  1. the judge determines that the information is not relevant;
  2. the judge determines that the information is relevant but should be summarized in a statement to be provided to the applicant; or
  3. the Minister withdraws the information.

For greater certainty

(2) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to an application made under subsection 83.05(5).

Context

Analysis

Clause 91 - Paragraph 58(2)(c) of the Canadian Human Rights Act

Previous

Canada Evidence Act

(2) An objection to disclosure shall be determined in accordance with the Canada Evidence Act if

…

(c) at any time, an objection to the disclosure is made, or a certificate is issued, in accordance with sections 38 to 38.13 of that Act.

Proposal

90 Paragraph 58(2)(c) of the Canadian Human Rights Act is replaced by the following:

(c) at any time, an objection to the disclosure is made, or a certificate is issued, in accordance with sections 38 to 38.13 or 38.2 to 38.41 of that Act.

Context

Analysis

Clause 92 - Subsection 70.1(1) of the Privacy act

Previous

Certificate under Canada Evidence Act

70.1 (1) Where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued before a complaint is filed by that individual under this Act in respect of a request for access to that information, the provisions of this Act respecting that individual’s right of access to his or her personal information do not apply to the information that is subject to the certificate.

Certificate following filing of complaint

(2) Notwithstanding any other provision of this Act, where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued in respect of personal information after the filing of a complaint under this Act in relation to a request for access to that information,

…

Information not to be disclosed

(3) The Privacy Commissioner and every person acting on behalf or under the direction of the Privacy Commissioner, in carrying out their functions under this Act, shall not disclose information subject to a certificate issued under section 38.13 of the Canada Evidence Act and shall take every reasonable precaution to avoid the disclosure of that information.

Limited power of delegation

(4) The Privacy Commissioner may not, nor may an Assistant Privacy Commissioner, delegate the investigation of any complaint respecting information subject to a certificate issued under section 38.13 of the Canada Evidence Act except to one of a maximum of four officers or employees of the Commissioner specifically designated by the Commissioner for the purpose of conducting that investigation.

Proposal

91 (1) Subsection 70.1(1) of the Privacy Act is replaced by the following: Certificate under Canada Evidence Act

70.1 (1) If a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued before a complaint is filed by that individual under this Act in respect of a request for access to that information, the provisions of this Act respecting that individual’s right of access to their personal information do not apply to the information that is subject to the certificate.

(2) The portion of subsection 70.1(2) of the Act before paragraph (a) is replaced by the following:

Certificate following filing of complaint

(2) Despite any other provision of this Act, if a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued in respect of personal information after the filing of a complaint under this Act in relation to a request for access to that information,

(3) Subsections 70.1(3) and (4) of the Act are replaced by the following:

Information not to be disclosed

(3) The Privacy Commissioner and every person acting on behalf or under the direction of the Privacy Commissioner, in carrying out their functions under this Act, shall not disclose information subject to a certificate issued under section 38.13 or 38.41 of the Canada Evidence Act and shall take every reasonable precaution to avoid the disclosure of that information.

Limited power of delegation

(4) The Privacy Commissioner may not, nor may an Assistant Privacy Commissioner, delegate the investigation of any complaint respecting information subject to a certificate issued under section 38.13 or 38.41 of the Canada Evidence Act except to one of a maximum of four officers or employees of the Commissioner specifically designated by the Commissioner for the purpose of conducting that investigation.

Context

Analysis

Clause 93 - Subsection 4.1(1) of the Personal Information Protection and Electronic Documents Act

Previous

Certificate under Canada Evidence Act

4.1 (1) Where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued before a complaint is filed by that individual under this Part in respect of a request for access to that information, the provisions of this Part respecting that individual’s right of access to his or her personal information do not apply to the information that is subject to the certificate.

Certificate following filing of complaint

(2) Notwithstanding any other provision of this Part, where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued after the filing of a complaint under this Part in relation to a request for access to that information:

…

Information not to be disclosed

(3) The Commissioner and every person acting on behalf or under the direction of the Commissioner, in carrying out their functions under this Part, shall not disclose information subject to a certificate issued under section 38.13 of the Canada Evidence Act, and shall take every reasonable precaution to avoid the disclosure of that information.

Power to delegate

(4) The Commissioner may not delegate the investigation of any complaint relating to information subject to a certificate issued under section 38.13 of the Canada Evidence Act except to one of a maximum of four officers or employees of the Commissioner specifically designated by the Commissioner for the purpose of conducting that investigation.

Proposal

92 (1) Subsection 4.1(1) of the Personal Information Protection and Electronic Documents Act is replaced by the following:

Certificate under Canada Evidence Act

4.1 (1) If a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued before a complaint is filed by that individual under this Part in respect of a request for access to that information, the provisions of this Part respecting that individual’s right of access to their personal information do not apply to the information that is subject to the certificate.

(2) The portion of subsection 4.1(2) of the Act before paragraph (a) is replaced by the following:

Certificate following filing of complaint

(2) Despite any other provision of this Part, if a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued after the filing of a complaint under this Part in relation to a request for access to that information:

(3) Subsections 4.1(3) and (4) of the Act are replaced by the following:

Information not to be disclosed

(3) The Commissioner and every person acting on behalf or under the direction of the Commissioner, in carrying out their functions under this Part, shall not disclose information subject to a certificate issued under section 38.13 or 38.41 of the Canada Evidence Act, and shall take every reasonable precaution to avoid the disclosure of that information.

Power to delegate

(4) The Commissioner may not delegate the investigation of any complaint relating to information subject to a certificate issued under section 38.13 or 38.41 of the Canada Evidence Act except to one of a maximum of four officers or employees of the Commissioner specifically designated by the Commissioner for the purpose of conducting that investigation.

Context

Analysis

Clause 94 - Section 6 of the Charities Registration (Security Information) Act

Previous

Judicial consideration

6 The following provisions govern the determination:

  1. the judge shall hear the matter;
  2. the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or endanger the safety of any person;
  3. the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

…

Proposal

93 Section 6 of the Charities Registration (Security Information) Act is replaced by the following:

Judicial consideration

6 (1) The following provisions govern the determination:

  1. any information or evidence the disclosure of which would be injurious to national security shall be returned to the Ministers and shall not be considered by the judge in determining whether the certificate is reasonable if either
    1. the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of a summary of the information or evidence provided to the applicant or the registered charity, or
    2. the matter is withdrawn;
  2. the judge shall provide the applicant or registered charity with an opportunity to be heard; and
  3. the judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.

For greater certainty

(2) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to the determination.

Context

Analysis

Clause 95 - Paragraphs 16(6)a) of the Secure Air Travel Act

Previous Procedure

(6) The following provisions apply to appeals under this section:

  1. at any time during a proceeding, the judge must, on the request of the Minister, hear information or other evidence in the absence of the public and of the appellant and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person;
  2. the judge must ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;
  3. throughout the proceeding, the judge must ensure that the appellant is provided with a summary of information and other evidence that enables them to be reasonably informed of the Minister’s case but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;

…

(f) the judge may base a decision on information or other evidence even if a summary of that information or other evidence has not been provided to the appellant;

…

Proposal

94 (1) Paragraphs 16(6)(a) to (c) of the Secure Air Travel Act are repealed.

(2) Paragraph 16(6)(f) of the Act is repealed.

(3) Section 16 of the Act is amended by adding the following after subsection (6):

For greater certainty

(6.1) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to appeals under this section.

Context

Analysis

Clause 96 - Section 4 of the Prevention of Terrorist Travel Act

Previous Procedure

4 The following rules apply to appeals under this section:

  1. at any time during the proceeding, the judge must, on the Minister’s request, hear evidence or other information in the absence of the public and of the appellant and their counsel if, in the judge’s opinion, the disclosure of the evidence or other information could be injurious to national security or endanger the safety of any person;
  2. the judge must ensure the confidentiality of the evidence and other information provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;
  3. throughout the proceeding, the judge must ensure that the appellant is provided with a summary of evidence and other information that enables the appellant to be reasonably informed of the Minister’s case but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;

…

(f) the judge may base his or her decision on evidence or other information even if a summary of that evidence or other information has not been provided to the appellant during the proceeding;

…

Proposal

95 (1) Paragraphs 4(4)(a) to (c) of the Prevention of Terrorist Travel Act are repealed.

(2) Paragraph 4(4)(f) of the Act is repealed.

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

For greater certainty

(5) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to appeals under this section.

Context

Analysis

Clause 97 - Section 6 of the Prevention of Terrorist Travel Act

Previous Rules

(2) The following rules apply for the purposes of this section:

  1. at any time during the proceeding, the judge must, on the Minister’s request, hear submissions on evidence or other information in the absence of the public and of the applicant and their counsel if, in the judge’s opinion, the disclosure of the evidence or other information could be injurious to national security or endanger the safety of any person;
  2. the judge must ensure the confidentiality of the evidence and other information provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;
  3. the judge must ensure that the applicant is provided with a summary of the evidence and other information available to the judge that enables the applicant to be reasonably informed of the reasons for the Minister’s decision but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;
  4. the judge must provide the applicant and the Minister with an opportunity to be heard;
  5. the judge may base his or her decision on evidence or other information available to him or her even if a summary of that evidence or other information has not been provided to the applicant;

...

Proposal

96 (1) Paragraphs 6(2)(a) to (c) of the Act are repealed.

(2) Paragraph 6(2)(e) of the Act is repealed.

(3) Section 6 of the Act is amended by adding the following after subsection (2): For greater certainty

(3) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to judicial review proceedings referred to in subsection (1).

Context

Analysis

Clause 98 - Section 2.2 of the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism

Previous Judicial Review

(2) When an application is made, the judge shall without delay

  1. examine, in private, any security or criminal intelligence reports considered in listing the applicant and hear any other evidence or information that may be presented by or on behalf of the Minister and may, at the request of the Minister, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant, if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person;
  2. provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information whose disclosure would, in the judge’s opinion, injure national security or endanger the safety of any person;

…

Proposal

Paragraphs 2.2(2)(a) and (b) of the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism are repealed.

Context

Analysis

Clause 99 - Section 2.3 of the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism

Previous

2.3 (1) For the purposes of subsection 2.2(2), in private and in the absence of the applicant or any counsel representing it,

  1. the Minister may make an application to the judge for the admission of information obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states; and
  2. the judge shall examine the information and provide counsel representing the Minister with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or any counsel representing it because the disclosure would injure national security or endanger the safety of any person.

(2) The information shall be returned to counsel representing the Minister and shall not be considered by the judge in making the determination under paragraph 2.2(2)(d) if

  1. the judge determines that the information is not relevant;
  2. the judge determines that the information is relevant but should be summarized in the statement to be provided under paragraph 2.2(2)(b); or
  3. the Minister withdraws the application.

Proposal

99 Section 2.3 of the Regulations is replaced by the following:

2.3 (1) For the purposes of section 2.2, any information that is obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states and that is

provided to the judge by the Minister must be returned to counsel representing the Minister and must not be considered by the judge in making the determination under paragraph 2.2(2)(d), if

  1. the judge determines that the information is not relevant;
  2. the judge determines that the information is relevant but should be summarized in a statement to be provided to the applicant; or
  3. the Minister withdraws the information.

(2) For greater certainty, sections 38.2 to 38.45 of the Canada Evidence Act apply to an application made under section 2.2.

Context

Analysis

Division 2 – Criminal Code

Clause 100 - Section 487.3 of the Criminal Code

Previous Reasons

(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

  1. if disclosure of the information would
    1. compromise the identity of a confidential informant,
    2. compromise the nature and extent of an ongoing investigation,
    3. endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or
    4. prejudice the interests of an innocent person; and
  2. for any other sufficient reason.

Proposal

100 Paragraph 487.3(2)(a) of the Criminal Code is amended by striking out “or” at the end of subparagraph (iii) and by adding the following after that subparagraph:

(iii.1) be injurious to international relations, national defence or national security, or

Context

Analysis

Division 3 – Immigration and Refugee Protection Act

Clause 101 - Subsection 77(2) of the Immigration and Refugee Protection Act

Previous

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.

Proposal

101 Subsection 77(2) of the Immigration and Refugee Protection Act is 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 international relations, national defence or national security or endanger the safety of any person if disclosed.

Context

Analysis

Clause 102 - Subsection 79.1(1) of the Immigration and Refugee Protection Act

Previous

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.

Proposal

102 Subsection 79.1(1) of the Act is replaced by the following:

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 international relations, national defence or national security or endanger the safety of any person.

Context

Analysis

Clause 103 - Subsection 82.31 (1) of the Immigration and Refugee Protection Act

Previous

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.

Proposal

103 Subsection 82.31(1) of the Act is replaced by the following:

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 international relations, national defence or national security or endanger the safety of any person.

Context

Analysis

Clause 104 (1) - Paragraph 83(1)(c) of the Immigration and Refugee Protection Act

Previous

Protection of information

83 (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:

…

  1. at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person;

Proposal

104 (1) Paragraph 83(1)(c) of the Act is replaced by the following:

  1. at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to international relations, national defence or national security or endanger the safety of any person;

Context

Analysis

Clause 104 (2) - Paragraph 83(1)(d) and (e) of the Immigration and Refugee Protection Act

Previous

Protection of information

83 (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:

…

  1. the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;
  2. throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;

…

Proposal

(2) Paragraphs 83(1)(d) and (e) of the Act are replaced by the following:

  1. the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person;
  2. throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to international relations, national defence or national security or endanger the safety of any person if disclosed;

Context

Analysis

Clause 104(3) - Paragraph 83(1.2)(c) of the Immigration and Refugee Protection Act

Previous

Appointment of special advocate

(1.2) If the permanent resident or foreign national requests that a particular person be appointed under paragraph (1)(b), the judge shall appoint that person unless the judge is satisfied that

…

(c) the person has knowledge of information or other evidence whose disclosure would be injurious to national security or endanger the safety of any person and, in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence

Proposal

(3) Paragraph 83(1.2)(c) of the Act is replaced by the following:

(c) the person has knowledge of information or other evidence whose disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person and, in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence.

Context

Analysis

Clause 105 - Paragraph 85.1(2)(a) of the Immigration and Refugee Protection Act

Previous Responsibilities

85.1(2) A special advocate may challenge

(a) the Minister’s claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person; and

Proposal

Paragraph 85.1(2)(a) of the Act is replaced by the following:

(a) the Minister’s claim that the disclosure of information or other evidence would be injurious to international relations, national defence or national security or endanger the safety of any person; and

Context

Analysis

Clause 106 - Subsection 86.1(1) of the Immigration and Refugee Protection Act

Previous

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.

Proposal

106 Subsection 86.1(1) 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 international relations, national defence or national security or endanger the safety of any person. The application may be made without an application for leave.

Context

Analysis

Clause 107 - Subsection 87.01(1) of the Immigration and Refugee Protection Act

Previous

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.

Proposal

107 Subsection 87.01(1) of the Act is replaced by the following:

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 international relations, national defence or national security or endanger the safety of any person.

Context

Analysis

Division 4 – Transitional Provisions, Coordinating Amendments and Coming into Force

Clause 108 – Transitional provision

Previous

N/A

Proposal

Transitional Provisions

Previously commenced proceedings

108 (1) Subject to subsections (2) and (3), any proceeding commenced before the day on which this section comes into force and in respect of which any of the provisions amended or repealed by this Part apply is to be continued in accordance with those provisions as they read immediately before that day.

Section 37.1 — Canada Evidence Act

Section 37.1 of the Canada Evidence Act, as that section read immediately before the day on which this section comes into force, continues to apply in respect of a determination made under any of subsections 37(4.1) to (6) of that Act in relation to a criminal trial or other criminal proceeding if the charge at issue in the trial or other proceeding is laid before that day.

Section 38.09 — Canada Evidence Act

Section 38.09 of the Canada Evidence Act, as that section read immediately before the day on which this section comes into force, continues to apply in respect of an order made under any of subsections 38.06(1) to (3) of that Act in relation to a criminal trial or other criminal proceeding if the charge at issue in the trial or other proceeding is laid before that day.

Context

Analysis

Clause 109 – Coordinating amendments

Previous

N/A

Proposal

Coordinating Amendments

109 On the first day on which both section 17 of the National Security Review of Investments Modernization Act and section 84 of this Act are in force, paragraphs 25.7(1)(a) to (e) of the Investment Canada Act are repealed.

Context

Act). Clause 109 specifies which amendments takes precedence, whenever which section of which bill comes into force first.

Analysis

Clause 110 - Coordinating amendments

Previous

N/A

Proposal

Bill C-26

110 (1) Subsections (2) to (9) apply if Bill C-26, introduced in the 1st session of the 44th Parliament and entitled An Act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other Acts (in this section referred to as the “other Act”), receives royal assent.

  1. On the first day on which section 2 of the other Act and section 84 of this Act are in force, paragraphs 15.9(1)(a) to (e) of the Telecommunications Act are repealed.
  2. If section 12 of the other Act comes into force before section 84 of this Act, then, on the day on which that section 84 comes into force, item 5 of the schedule to the Canada Evidence Act is repealed.
  3. If section 84 of this Act comes into force before section 12 of the other Act, then that section 12 is deemed never to have come into force and is repealed.
  4. If section 12 of the other Act comes into force on the same day as section 84 of this Act, then that section 12 is deemed never to have come into force and is repealed.
  5. On the first day on which section 145 of the Critical Cyber Systems Protection Act, as enacted by section 13 of the other Act, and section 84 of this Act are in force, paragraphs 145(1)(a) to (e) of the Critical Cyber Systems Protection Act are repealed.
  6. If section 14 of the other Act comes into force before section 84 of this Act, then, on the day on which that section 84 comes into force, item 6 of the schedule to the Canada Evidence Act is repealed.
  7. If section 84 of this Act comes into force before section 14 of the other Act, then that section 14 is repealed.
  8. If section 14 of the other Act comes into force on the same day as section 84 of this Act, then that section 14 is deemed never to have come into force and is repealed.

Context

Analysis

Clause 111 - Coordinating amendments - C-27

Previous

N/A

Proposal

Bill C-27

(1) Subsections (2) to (4) apply if Bill C-27, introduced in the 1st session of the 44th Parliament and entitled the Digital Charter Implementation Act, 2022 (in this section referred to as the “other Act”), receives royal assent.

(2) On the first day on which both section 108 of the Consumer Privacy Protection Act, as enacted by section 2 of the other Act, and section 84 of this Act are in force,

  1. subsection 108(1) of the Consumer Privacy Protection Act is replaced by the following: Certificate under Canada Evidence Act

108 (1) If a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued before a complaint is filed by that individual under this Act in respect of a request for access to that information, the provisions of this Act respecting that individual’s right of access to their personal information do not apply to the information that is subject to the certificate.

(b) the portion of subsection 108(2) of that Act before paragraph (a) is replaced by the following:

Certificate following filing of complaint

(2) Despite any other provision of this Act, if a certificate under section 38.13 or 38.41 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued after the filing of a complaint under this Act in relation to a request for access to that information,

(b) subsections 108(3) and (4) of that Act are replaced by the following:

Information not to be disclosed

(3) The Commissioner and every person acting on behalf or under the direction of the Commissioner, in exercising their powers and performing their duties and functions under this Act, must not disclose information subject to a certificate issued under section 38.13 or 38.41 of the Canada Evidence Act and must take every reasonable precaution to avoid the disclosure of that information.

Power to delegate

(4) The Commissioner must not delegate the investigation or inquiry in respect of any complaint relating to information subject to a certificate issued under section 38.13 or 38.41 of the Canada Evidence Act except to one of a maximum of four officers or employees of the Commissioner specifically designated by the Commissioner for the purpose of conducting that investigation or inquiry, as the case may be.

(3) If section 4 of the other Act comes into force before section 93 of this Act, then that section 93 is repealed.

(4) If section 4 of the other Act comes into force on the same day as section 93 of this Act, then that section 93 is deemed to have come into force before that section 4.

Context

Analysis

Clause 112 - Coming into Force

Previous

N/A

Proposal

60th day after royal assent

This Part, other than sections 109 to 111, comes into force on the 60th day after the day on which this Act receives Royal Assent.

Context

Analysis

Part 4: Foreign Influence Transparency and Accountability Act

Clause 113 – An Act respecting the provision and registration of information in relation to arrangements entered into with foreign states or powers and their proxies under which persons undertake to carry out certain activities in relation to political or governmental processes in Canada.

Clause 1 – Short Title

Proposal

This Act may be cited as the Foreign Influence Transparency and Accountability Act

Context

Analysis

This clause would set out the name of the proposal.

Clause 2 – Definitions

Proposal

The following definitions apply in this Act.

arrangement means an arrangement under which a person undertakes to carry out, under the direction of or in association with a foreign principal, any of the following activities in relation to a political or governmental process in Canada:

  1. communicating with a public office holder;
  2. communicating or disseminating or causing to be communicated or disseminated by any means, including social media, information that is related to the political or governmental process;
  3. distributing money or items of value or providing a service or the use of a facility. (arrangement)

Commissioner means the Foreign Influence Transparency Commissioner appointed under subsection 9(1). (commissaire)

foreign principal means a foreign economic entity, a foreign entity, a foreign power or a foreign state, as those expressions are defined in subsection 2(1) of the Security of Information Act. (commettant étranger)

Minister means the Minister of Public Safety and Emergency Preparedness. (ministre)

person includes a corporation, a trust, a joint venture, a partnership, a fund, an unincorporated association or organization and any other legal entity. (personne)

political or governmental process includes

  1. any proceeding of a legislative body;
  2. the development of a legislative proposal;
  3. the development or amendment of any policy or program;
  4. the making of a decision by a public office holder or government body, including the awarding of a contract;
  5. the holding of an election or referendum; and
  6. the nomination of a candidate or the development of an electoral platform by a political party. (processus politique ou gouvernemental)

public office holder means an individual included in a class of individuals specified in the regulations and, unless they are excluded by the regulations, any of the following individuals:

  1. a public office holder as defined in subsection 2(1) of the Lobbying Act;
  2. an individual referred to in any of paragraphs 4(1)(a) to (c) of that Act;
  3. an individual referred to in paragraph 4(1)(d) or (d.1) of that Act;
  4. an officer or employee of an entity referred to in subparagraph 4(c)(ii) of this Act. (titulaire d’une charge publique)

Context

Analysis

This clause sets out various definitions relevant to the proposed Act. Some definitions are new and have been designed specifically for this proposed Act, while others are drawn from existing definitions in other Acts of Parliament.

arrangement: The intent is to define what constitutes an “arrangement” for the purposes of the proposed Act. This definition is critical as certain information related to an “arrangement” would be disclosed on the registry. The classes of information to be disclosed would be set out by way of regulation.

An arrangement would require three elements: a person to act under the direction of, or in association with, a foreign principal; the person would have to engage in at least one of the foreign influence activities listed in the definition; and, the activity would need to be done in relation to a political or governmental process in Canada.

Commissioner: This definition establishes the title of the Commissioner as the Foreign Influence Transparency Commissioner.

foreign principal: This definition is intended to incorporate the wide and diverse ways in which foreign governments hold power. It is a term that is used to denote a collection of definitions set out in the Security of Information Act for foreign governments, states, economic entities, and foreign powers.

Minister: The Minister of Public Safety and Emergency Preparedness.

person: this definition is intended to cover both individuals and entities which are considered persons for the purposes of the proposed Act.

political or governmental processes: This definition is intended to include processes involving government policy development and decision making.

public office holder: As set out in the definition of arrangement in this proposed Act, communicating with a public office holder is one of the activities which, if undertaken at the direction of, or in association with, a foreign principal, may result in a duty to provide information (register).

The paragraphs listed in this definition would come into force on a day to be fixed by order of the Governor in Council. The paragraphs in this definition cover federal public office holders (paragraph a), provincial or territorial or municipal public office holders (paragraph b), and Indigenous public office holders (paragraphs c and d). It is likely that paragraphs b through d would come into force later than paragraph a.

Clause 3 - Purpose

Proposal

The purpose of this Act is:

  1. to ensure that persons who, under an arrangement, carry out activities in relation to a political or governmental process in Canada do so in a transparent manner;
  2. to deter foreign principals from making efforts to influence political or governmental processes in Canada in a non-transparent manner
  3. to raise public awareness of efforts by foreign principals to influence political or governmental processes in Canada; and
  4. to strengthen national security

Context

This clause sets out the purpose of the proposed Act.

Analysis

This clause sets out the purpose of the proposed Foreign Influence Transparency and Accountability Act.

Application

Clause 4 - Application

Proposal

This Act applies to arrangements relating to any of the following political or governmental processes:

  1. federal political or governmental processes;
  2. provincial or territorial political or governmental processes;
  3. the political or governmental processes of
    1. a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act,1982, or
    2. any other entity that represents the interests of First Nations, the Inuit or the Métis.

Context

Analysis

The coming into force for clause 4(b) is specifically written to allow for the proposed law to come into force to cover provincial and territorial political and governmental processes under this clause at a time different to that of either clauses 4(a) or (c). The Governor in Council retains authority to set a coming into force date for provincial and territorial processes under clause 117(2) of this proposal.

Clause 4(c) is drafted in the same manner to allow for the law to come into force for political or governmental processes of Indigenous governments and organizations at a time to be determined by the Governor in Council. Clause 4(c)(i) covers political or governmental processes of a council or government or other entity that is authorized to act on behalf of an Indigenous group that holds rights recognized and affirmed under Section 35 of the Constitution Act, 1982.

Clause 4(c)(ii) is intended to broadly cover Indigenous organisations that represent the interests of Indigenous peoples, regardless of whether they form a government or are otherwise authorized to represent the rights and interests of Indigenous peoples.

Provision of Information

Clause 5(1) – Duty to provide information

Proposal

A person who enters into an arrangement with a foreign principal must, within 14 days after the day on which they enter into the arrangement, provide the Commissioner with the information specified in the regulations.

Context

Analysis

Clause 5(1) would impose a duty to provide information that is fundamental to the operation of the registry. Where a person is in an arrangement as defined in the proposed Act, they would be required to provide information specified in the regulations to the Commissioner.

The definition of arrangement is set out in clause 2 of the proposed Act, and means an arrangement under which a person carries out, at the direction of, or association with a foreign principal, certain activities in relation to a Canadian political or governmental process. Activities include communicating with a public office holder, communicating or disseminating or causing to be communicated or disseminated by any means information to the public, and distributing money or items of value or providing a service or the use of a facility.

Definitions for foreign principal and a list of political or governmental processes are included in clause 2 of the proposed Act.

The window to provide information is set at 14 days after the day on which they enter into the arrangement. This would allow for the individual to finalize their arrangement and then undertake to register it in a reasonable amount of time. Prior to the registration, 14 days after the day on which they enter into an arrangement there is no prohibition on undertaking any of the activities outlined in the proposed Act. The proposed Act is not intended to prohibit such activities in Canada, only that those activities and certain details surrounding the arrangements should be made transparent.

The time period to register the arrangement balances the public’s interest in knowing about foreign influence in Canada in relation to political or governmental processes, with the administrative burden on persons who are required to register arrangements.

Clause 5(2) – Duty to update information

Proposal

The person must, in accordance with the regulations, also provide the Commissioner with updates on any information they have provided under this section.

Context

Analysis

Clause 5(2) would impose a duty to update the information a person has provided under clause 5(1) in accordance with the regulations.

This requirement is in keeping with the goal of the proposed legislation to enhance transparency over sources of foreign influence in Canada. The public has an interest in ensuring that information about arrangements on the registry is kept up to date and sets out an accurate picture of sources of foreign influence in relation to political and governmental processes in Canada.

Though no timeline is set out in statute for updating information on the registry pursuant to clause 5(2), clause 27(d) of the proposed Act affords regulation-making authority to the Governor in Council regarding clause 5(2), which is intended to include setting out the timeline and scope of information which should be updated on the registry pursuant to this section. Setting this out in regulation is intended to allow for flexibility to evolve this provision as required.

Failure to meet the duties set out in clause 5(1) or (2) may be pursued by the Commissioner as either a violation or an offence.

Clause 6(1)(a) Non-application – persons

Proposal

Section 5 does not apply to any of the following persons:

  1. a foreign national who holds a passport tha t contains a valid diplomatic, consular, official or special representative acceptance issued by the Chief of Protocol for the Department of Foreign Affairs, Trade and Development;

Context

Analysis

Foreign governments have established, legal, and legitimate channels of engagement with Canada. This includes foreign government officials engaging with Canadian officials, or communicating about Canadian political or governmental processes in a transparent, official manner.

Such legitimate exercising of influence is not the target of the proposed Act and for this reason the exemption, as laid out in clause 6, is made available.

This exemption is intended to only cover officials accredited to operate in the outlined capacity in Canada.

Clause 6(1)(b)

Proposal

Section 5 does not apply to any of the following persons:

…

  1. an employee of a foreign principal who is acting openly in the employee’s official capacity

Context

Analysis

This exemption is intended to only cover foreign principal employees where there is sufficient transparency already in place because they are acting openly in their official capacity.

Employees of a foreign principal may regularly interact with Canadian public office holders and/or discuss matters related to political and governmental processes in Canada. When these persons operate openly within their official capacity, there would be sufficient transparency in place to indicate they are clearly acting on behalf of a foreign principal.

Requiring foreign principal employees to provide information to the Commissioner may place undue administrative burden and hamper Canada’s ability to engage internationally with foreign principals in transparent government-to-government relations.

This exemption is intended only to apply to employees of a foreign principal. It is not intended to extend to persons a foreign principal may contract with (e.g. consultant, businesses), as an example, or enter into an arrangement with.

Clause 6(1)(c)

Proposal

Section 5 does not apply to any of the following persons:

…

  1. a person who is included in a class of persons specified in the regulations.

Context

Analysis

The intent in the proposed clause is to authorize the Governor in Council to bring forward additional exemptions pursuant to this clause, should there be a need to do so. The exemption making authority is set out in clause 27 of the proposed Act.

Though not an exemption, the Commissioner would be provided the authority to issue advisory opinions and interpretation bulletins in clause 13(1) of the proposed Act to further clarify application.

Clause 6(2)(a) – Non-application – arrangements

Proposal

Section 5 does not apply to any of the following arrangements:

Context

Analysis

The intent of clause 6(2)(a) is to exempt arrangements to which His Majesty in right of Canada is a party. In any such arrangement, transparency would already be a given and there would be no additional benefit to requiring persons acting pursuant to those arrangements to provide information to the Commissioner.

Clause 6(2)(b)

Proposal

Section 5 does not apply to any of the following arrangements:

…

  1. an arrangement that is included in a class of arrangements specified in the regulations.

Context

Analysis

Exemptions set out in clauses 6(1) and 6(2) offer a narrow set of exemptions to cover specific situations and persons. At the same time, the intent in the proposal is to authorize the Governor in Council to bring forward additional exemptions pursuant to this clause, should there be a need to do so. The exemption making authority is set out in clause 27(e) of the proposed Act.

Clause 7 - Prohibition – false or misleading information

Proposal

A person must not knowingly provide any false or misleading information to the Commissioner or to any person acting on the Commissioner’s behalf or under the Commissioner’s direction.

Context

Analysis

Clause 7 would be a prohibition against providing false or misleading information to the Commissioner or anyone acting on their behalf. This would include, but not be limited to, information provided to the Commissioner pursuant to clauses 5(1) and (2) of the proposed Act.

This prohibition would require that a person knowingly provide false or misleading information.

Prohibition clauses against providing false or misleading information to other Commissioners are relatively standard, and are included in enabling legislation for other regimes administered by independent regulators and agencies of Parliament.

If an individual contravenes this section of the law, they will have committed a violation pursuant to clause 18(1) and would be liable to an administrative monetary penalty. A contravention of this clause would also be an offence pursuant to clause 23(1). The Commissioner would have independent discretion regarding enforcement of the proposed Act, and may choose to pursue a contravention as either a violation or an offence.

Registry

Clause 8(1) – Duties of the Commissioner

Proposal

The Commissioner must establish and maintain a registry that contains information providedunder section 5 that is included in a class of information specified in the regulations.

Context

Analysis

This clause sets out the requirement to create a registry which includes the classes of information that would be set out by way of regulation brought forward by the Governor in Council pursuant to their authority under clause 27(f). The creation of this registry is essential for administering the proposed Act.

Clause 8(2) – Accessible to public

Proposal

The registry must be accessible to the public.

Context

Analysis

The intent is that the registry would be made publicly available to uphold transparency and deterrence objectives for the proposal.

The Commissioner would have discretion over how the registry could be made accessible to Canadians and using what means, as this is not specified in the proposed Act. This flexibility would allow the Commissioner to adapt to changes in technology as well as ensuring that the information is made public in the most effective manner for Canadians.

The specific fields or categories of information that would be made publicly available on the register would be set out by way of regulation pursuant to Clause 27(f).

Foreign Influence Transparency Commissioner

Clause 9(1) – Appointment

Proposal

The Governor in Council is to appoint an individual to be known as the Foreign Influence Transparency Commissioner, to be responsible for the administration and enforcement of this Act.

Context

Analysis

This clause sets out that the authority to appoint the Commissioner will rest with the Governor in Council.

The intent in the proposed Act is that the Commissioner and the supporting office would be established within a department. The Commissioner would be able to exercise independent decision making in compliance and enforcement-related decisions, while the Commissioner and office may leverage existing frameworks, efficiencies, and processes concerning hiring, information sharing and other internal services that exist within government departments.

Clause 9(2)(a) to (d)– Consultation

Proposal

The appointment is to be made after consultation with

  1. the Leader of the Government in the Senate or Government Representative in the Senate and the Leader of the Opposition in the Senate;
  2. the Leader or Facilitator of every other recognized party or parliamentary group in the Senate;
  3. the Leader of the Opposition in the House of Commons; and
  4. the leader in the House of Commons of each party having at least 12 members in that House.

Context

Analysis

The intent in this clause is that, given the nature of the influence activities the Commissioner would be addressing as part of their mandate, all political parties with at least 12 members in the legislature would have a role in the appointment process.

The proposal is designed to require consultation as opposed to approval by the leadership of other parties in the legislature to avoid potential delays in the appointment processes.

Clause 9(3) – Tenure and Removal

Proposal

Subject to this section, the Commissioner holds office during good behaviour for a term of up to seven years, but may be removed for cause by the Governor in Council at any time.

Context

Analysis

The intent in this clause is that the tenure of the Commissioner be sufficiently long to span election periods, reinforcing the independence of the position, and to provide a mechanism by which the Commissioner may be removed for cause.

Clause 9(4) – Reappointment Proposal

The Commissioner is eligible to be reappointed for one additional term of up to seven years..

Context

Analysis

The establishment of a term limit in the proposed Act ensures that the position of Commissioner remains one which allows for continuous improvement and adapts to fresh ideas and evolving methodologies.

Clause 9(5) – Interim Appointment

Proposal

In the event of the absence or incapacity of the Commissioner, or if that office is vacant, the Governor in Council may appoint an individual to hold that office in the interim for a term of up to six months, and that individual is to, while holding office, be paid the remuneration and expenses that may be fixed by the Governor in Council.

Context

Analysis

This clause would ensure that the important role of Commissioner does not sit vacant. If the appointed Commissioner is removed by the Governor in Council for cause, this clause could also be used to temporarily staff the office until such a time that a new Commissioner is appointed pursuant to the provisions set out in clauses 9(2)(a) through (d).

Clause 10(1) – Remuneration Proposal

The Commissioner is to be paid the remuneration that is fixed by the Governor in Council.

Context

Analysis

By having the Governor in Council set the renumeration for the Commissioner, it could be assured that the renumeration follows a similar process to that of other commissioners across the Government of Canada.

Clause 10(2) - Travel and living expenses

Proposal

The Commissioner is entitled to be paid, 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 under this Act while absent from their ordinary place of work.

Context

Analysis

As with other commissioners in the Government of Canada, the work of the Commissioner would be facilitated by existing regulations, as established by Treasury Board, so that the necessary work can be performed unimpeded.

Clause 10(3) – Clarifications Proposal

For greater certainty, the Commissioner is an employee for the purposes of the Government Employees Compensation Act and is employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.

Context

Analysis

Ensuring clarity on this point would ensure that the Commissioner has certainty around terms of employment, rights and responsibilities.

The Government Employees Compensation Act applies to compensation for employees who are injured in the performance of their duties, or are disabled by reason of a disease or some other factor regarding the nature of the employment. It also extends certain benefits in such circumstances to dependents of the employee.

The Aeronautics Act governs civil aviation in Canada, and enables the Canadian Aviation Regulations.

A clause confirming that the Commissioner is an employee for the purposes of the two Acts in the proposed clause is a common clause found in other Acts of parliament, such as the Lobbying Act, the Privacy Act, and the Intelligence Commissioner Act, among others.

Clause 11(1) – Deputy Commissioners and Staff

Proposal

The Deputy Commissioners and officers and employees that are necessary to enable the Commissioner to exercise their powers and perform their duties and functions under this Act are to be appointed in accordance with the Public Service Employment Act.

Context

Analysis

The Public Service Employment Act applies to the hiring and retention of public servants in the Government of Canada. While the Commissioner would be an independent entity appointed by the Governor in Council, the office of the Commissioner is intended to be comprised of public servants.

This model is similar to others in the Federal Public Service. For example, the Commissioner of Competition is an independent Commissioner appointed by the Governor in Council to administer the Competition Act, with the Competition Bureau supporting independent enforcement decision making.

The intent behind this design is that the Commissioners staff will be able to leverage existing information sharing processes and procedures with other departments and agencies in Canada, given their position as public servants within a department.

Clause 11(2) – Powers, duties and functions of Deputy Commissioners

Proposal

The Deputy Commissioners are to exercise the powers, and perform the duties and functions, that the Commissioner may assign to them.

Context

Analysis

There are several streams of work that the Commissioner would be responsible for under the proposed Act. This includes maintaining the registry itself, processing information related to arrangements, and making decisions with respect to compliance and enforcement. Though not set out in the proposed Act, the Commissioner would likely also need to educate the public about the registry and engage with stakeholders regarding the implications of the proposed Act. As a result, the proposed Act would provide the authority to the Commissioner to appoint deputy Commissioners as support.

This clause would also provide the Commissioner the authority to assign powers and duties to Deputy Commissioners. The specific delineation of work responsibilities would be subject to a decision by the Commissioner.

Clause 12 – Technical Assistance

Proposal

The Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the Commissioner’s work to advise and assist the Commissioner in the exercise of their powers and performance of their duties and functions and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of those persons.

Context

Analysis

The intent of this clause is to provide the Commissioner with the capacity to contract out specialized services as required to address specific issues in administering the proposed Act and enforcing the regime, including investigations.

The decision on contracting services would rest with the Commissioner. Relevant Treasury Board directives and processes governing this process would apply, with approval from Treasury Board required for setting payment and expenses for contracting services.

Clause 13(1) – Advisory opinions and interpretation bulletins

Proposal

The Commissioner may issue advisory opinions and interpretation bulletins with respect to the enforcement, interpretation or application of this Act.

Context

Analysis

Advisory opinions and interpretation bulletins are important tools through which the Commissioner may inform the public on how it is expected that the proposed Act will be administered, and what responsibilities potential registrants may have.

Other Canadian commissioners and independent Agents of Parliament have the ability to issue interpretation bulletins to provide clarity with respect to the application of their governing legislation.

Advisory opinions, unlike interpretation bulletins, may offer specific guidance, including to a particular group or set of individuals on how, for example, the proposed Act may or may not apply to them.

Clause 13(2) – Clarifications Proposal

The advisory opinions and interpretation bulletins are not statutory instruments for the purposes of the Statutory Instruments Act and are not binding.

Context

Analysis

While interpretation bulletins and advisory opinions provide helpful guidance to individuals who may or may not interact with the proposed Act, this clause is intended to ensure that they are not binding. This requires specific wording in this clause to clarify they are not to be considered statutory instruments pursuant to the Statutory Instruments Act.

Clause 14 – Immunity

Proposal

No civil or criminal proceeding lies against the Commissioner, or any person acting on their behalf or under their direction, in respect of anything that is done or omitted to be done in good faith in the course of the exercise or performance, or purported exercise or performance, of any power, duty or function of the Commissioner under this Act.

Context

Analysis

Clause 14 is intended to protect the Commissioner and staff, including anyone contracted to perform certain functions for the Commissioner, from liability when performing duties related to their official capacity and are doing so in good faith.

Confidentiality

Clause 15 – Limitation on disclosure

Proposal

With the exception of information in the registry made accessible to the public under section 8, the Commissioner, and any person acting on the Commissioner’s behalf or under the Commissioner’s direction, may not disclose any information that comes to their knowledge in the performance of their duties and functions under this Act, unless

  1. the disclosure is, in the opinion of the Commissioner, necessary for the purpose of conducting an investigation under section 16;
  2. the information is disclosed in the course of proceedings for a violation under this Act;
  3. the information is disclosed in the course of a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made to the Commissioner;
  4. the Commissioner believes on reasonable grounds that the disclosure may assist a law enforcement agency in the investigation of an offence under this or any other Act of Parliament or of the legislature of a province or territory;
  5. the disclosure is authorized under the regulations; or
  6. the disclosure is otherwise permitted, authorized or required by law.

Context

Analysis

The Commissioner would be provided the authority to establish and maintain a registry and make certain information publicly available pursuant to regulations. Outside of this, clause 15 would set out other circumstances where information may be disclosed.

Similar allowances for public disclosure are designed in the enabling statutes of other independent Commissioners.

The intent is that this clause allow for disclosures that are required either as part of an investigation or a violation proceeding. This could include, for example, making public a notice of decision or a notice of violation, upholding transparency and deterrence against malign foreign influence that is a primary objective of this proposed Act.

This clause would also allow the Commissioner to disclose information where the Commissioner has reason to believe that the disclosure may assist law enforcement investigate an offence, whether or not that offence is set out in this proposed Act or another act of parliament or a provincial or territorial legislature, or is otherwise permitted or authorized by law.

Investigations

Clause 16(1) – Power to investigate

Proposal

The Commissioner may conduct an investigation for the purpose of ensuring compliance with subsection 5(1) or (2) or section 7.

Context

Analysis

A key consideration in drafting this clause was to ensure that reasonable limits were placed on the scope of investigations the Commissioner could undertake. During the consultation period many stakeholders and interlocutors highlighted that the Commissioner should have reasonable limitations placed on what can and cannot be investigated.

The proposed Act seeks to enhance transparency over foreign influence in relation to Canadian political and governmental process, and identify those individuals who are active in this space. To this end, clause 16(1) limits investigative authority to ensure compliance with the duty to provide information to the Commissioner (clause 5(1)) and information updating (clause 5(2)) obligations.

The Commissioner would also be able to investigate where false or misleading information may have been knowingly provided.

Clause 16(2) (a) to (c)

Proposal

In conducting an investigation, the Commissioner may

  1. in the same manner and to the same extent as a superior court of record,
    1. summon and enforce the attendance of persons before the Commissioner and compel them to give oral or written evidence on oath or solemn affirmation, and
    2. compel persons to produce any documents or other things that the Commissioner considers relevant for the investigation;
  2. administer oaths and solemn affirmations; and
  3. receive and accept information, whether or not it would be admissible as evidence in a court of law.

Context

Analysis

Clauses 16(2)(a) through (c) explore the extent of powers afforded to the Commissioner in conducting an investigation. In order for investigations to be effective, the Commissioner would require the tools to be available investigate the potential violation or offence.

The ability to solicit evidence, administer oaths, and receive information necessary for the purposes of the investigation is based on other Canadian laws which afford certain powers to other independent commissioners.

The method by which evidence can be compelled has not been prescribed in the proposed Act to preserve the Commissioner’s ability to select the most appropriate means of doing so.

Clause 17 – Evidence in other proceedings

Proposal

Evidence given by a person in an investigation and evidence of the existence of an investigation are inadmissible against the person in a court or in any other proceeding, other than in a proceeding for a violation under this Act or in a prosecution of the person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made to the Commissioner.

Context

is for a violation under this proposed Act or in the prosecution of a perjurycharge flowing from a statement made to the Commissioner.

Analysis

The intent here is to ensure that evidence given by a person would be inadmissible in other proceedings, except for perjury.

Administrative Monetary Penalties

Clause 18(1) – Violation and liability

Proposal

A person who contravenes subsection 5(1) or (2) or section 7 commits a violation and is liable to an administrative monetary penalty.

Context

Analysis

Clause 18(1) outlines that violations of clauses 5(1) (the duty to provide information) and 5(2) (the duty to update information), or clause 7 (providing false or misleading information) may be addressed through administrative monetary penalties. The Commissioner would have several tools to enforce compliance with the proposed Act. The Commissioner may rely on notices of violations or administrative monetary penalties to address violations.

The existence of administrative monetary penalties in the proposed Act bolsters the Commissioner’s ability to bring individuals into compliance with the law, and dissuades actors who may otherwise seek to actively avoid registration obligations.

Clause 18(2) – Purpose

Proposal

The purpose of an administrative monetary penalty is to promote compliance with this Act and not to punish.

Context

Analysis

While decision-making with respect to enforcement would ultimately be at the discretion of the Commissioner, the intent of administrative monetary penalties is to promote compliance, not to punish individuals or persons.

The amount set for the administrative monetary penalty would be set out by the Commissioner in a notice of violation in accordance with clause 19(2).

In determining the amount for the administrative monetary penalty, the intent is that the Commissioner would take into consideration certain factors to determine the penalty amount. Those factors would be set out by way of regulation in accordance with the regulation making authority afforded to the Governor in Council in clause 22.

Clause 18(3) – Violation or offence

Proposal

If an act or omission may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding with it in the other.

Context

Analysis

The intent is to ensure that instances of non-compliance are treated as either violations, making them liable to an administrative monetary penalty, or as offences. This is in keeping with the overall policy goal of providing the Commissioner with many sufficient tools and approaches to address compliance and enforcement.

Clause 5(1) would place a duty on persons to provide information to the Commissioner regarding arrangements, clause 5(2) would place a duty on persons to ensure certain information on the registry is up to date, and clause 7 would set out a prohibition against knowingly lying to or misleading the commissioner. These three provisions could be pursued through 18(1) as violations, or 23(1) as offences.

Clause 19(1) – Notice of violation

Proposal

The Commissioner may issue a notice of violation to a person if the Commissioner has reasonable grounds to believe that the person has committed a violation.

Context

Analysis

The Commissioner would be provided the authority to issue a notice of violation in order to address a violation. The notice of violation would be a key step in the administrative enforcement process where the individual suspected of non-compliance would be provided information related to the nature of the violation, and offered potential recourse mechanisms. This would also serves as a deterrent to non-compliance.

Ultimately the decision with respect to the issuance of a notice of violation under this clause would be subject to the discretion of the Commissioner.

Clause 19(2) – Contents

Proposal

The notice of violation must set out

  1. the person’s name;
  2. the violation at issue;
  3. the amount of the administrative monetary penalty to which the person is liable;
  4. the person’s right, within 30 days after the day on which the notice is served or within any longer period that the Commissioner may specify, to pay the penalty or to make representations to the Commissioner with respect to the violation and the penalty, and the manner for doing so; and
  5. (the fact that, if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commissioner may impose a penalty in respect of it.

Context

Analysis

Clause 19(2) would establish the details that are required when issuing a notice of violation. It is also an important clause to ensure the person who is believed to have, on reasonable grounds, committed the violation would have a process to make representations. The intent of the clause and the overall administrative process regarding violations would ensure there is procedural fairness afforded to individuals believed to be in non-compliance.

Clause 22(b) would provide regulatory authority to the Governor in Council respecting the administrative monetary penalties scheme, including the ability to make regulations respecting the factors to be taken into account in relation to the imposition of an administrative monetary penalty.

Clause 20(1) – Payment of a penalty

Proposal

If the person pays the penalty in accordance with the notice of violation, they are deemed to have committed the violation and proceedings in respect of it are ended

Context

Analysis

Clauses 20(1) would ensure that payment of a penalty would bring proceedings to a close for that violation.

Clause 20(2) – Decision – Commission of a violation

Proposal

If the person makes representations in accordance with the notice, the Commissioner must decide, on a balance of probabilities, whether the person committed the violation and, if so, may impose the penalty set out in the notice, a lesser penalty or no penalty.

Context

Analysis

The intent of clause 20(2) would be to provide discretion to the Commissioner to make decisions respecting the commission of violations and the authority to select the penalty. Affording this discretion would be consistent with the objectives of the law to place independent enforcement authority with the Commissioner.

Clause 20(2) requires the Commissioner to decide on a balance of probabilities whether the violation has been committed once representations are made in response to the original notice

Clause 20(3) – Failure to pay or make representations Proposal

A person who neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Commissioner may impose the penalty set out in the notice, a lesser penalty or no penalty.

Context

Analysis

The intent of clause 20(3) is to establish that failure to pay a penalty or make a representation in relation to a notice of violation would mean the violation is deemed to have been committed. This clause would still allow the Commissioner the ability to adjust the penalty. Affording this discretion is consistent with the objectives of the proposed Act to provide the Commissioner with discretion when imposing penalties.

Clause 20(4) – Notice of decision

Proposal

The Commissioner must cause notice of any decision made under subsection (2) or (3) to be served on the person.

Context

Analysis

Where a violation has occurred the Commissioner would be required to serve notice of decision on a person who is deemed to have committed such violation.

Clause 21(1) – Publication

Proposal

The Commissioner must make public the nature of a violation, the name of the person who committed it and the amount of the penalty imposed, if any.

Context

Analysis

A primary intent of the proposal is to promote transparency over malign foreign influence in Canada undertaken in a non-transparent manner and to bolster deterrence against those who would seek to engage in these activities in Canada covertly.

This clause is designed to ensure that there would be a requirement to make public the nature of a violation, the name of the person who committed it and the amount of the penalty imposed, if any.

Clause 21(2) – Reasons

Proposal

In doing so, the Commissioner may include the reasons for their decision, including the relevant facts, analysis and considerations that formed part of it.

Context

Analysis

Requiring public disclosure of violations in the proposed Act would ensure that the objectives of transparency and deterrence are upheld. Clause 21(1) would set out that the Commissioner must make public the nature of a violation, the name of the person who committed it, as well as the amount of the penalty imposed, if any. The intent of clause 21(2) is to provide the Commissioner with discretion to also include the reasons for their decision in any disclosure. This could include the relevant facts, analysis and considerations that formed part of the decision.

The policy intent of such transparency is to deter further violations of non-transparent influence activities undertaken in relation to political and government processes in Canada.

Clause 22 – Regulations

Proposal

The Governor in Council may make regulations respecting the administrative monetary penalties scheme, including regulations respecting

  1. the amount, or range of amounts, of the administrative monetary penalties that may be imposed;
  2. the factors to be taken into account in relation to the imposition of an administrative monetary penalty;
  3. compliance agreements; and
  4. the individuals or classes of individuals who may exercise or perform any of the Commissioner’s powers, duties or functions in relation to the scheme, including the designation of such individuals or classes of individuals by the Commissioner.

Context

Analysis

This regulation authority would allow the Governor in Council to make regulations respecting the administrative monetary penalties scheme, including compliance agreements; and the individuals or classes of individuals who may exercise or perform any of the Commissioner’s powers, duties or functions in relation to the scheme, including the designation of such individuals or classes of individuals by the Commissioner. These factors are not set out elsewhere in the proposed Act.

Having these factors set out by way of regulation provides increased flexibility to change these provisions in the future to ensure the proposed law can adapt to the realities of evolving malign foreign influence threats.

Offences

Clause 23(1) – Contravention of subsection 5(1) or (2) or section 7 Proposal

Every person commits an offence if they contravene subsection 5(1) or (2) or section 7.

Analysis

Clause 23(1) would ensure that failing to uphold responsibilities to provide and/or update information with the Commissioner, or to knowingly provide false or misleading information to the Commissioner would constitute an offence, and may be pursued as such.

The same offences set out in this clause would also constitute violations pursuant to clause 18(1). It would ultimately be at the discretion of the Commissioner as to whether these would be pursued as violations or as offences.

The classes of information to be provided, and the types of information which persons would need to disclose (clause 5(1)) or update (clause 5(2)) would be set out in regulation by the Governor in Council pursuant to clause 27 of this proposed Act.

Clause 23(2) - Due diligence defence

Proposal

A person is not to be found guilty of an offence under subsection (1), other than for a contravention of section 7, if they establish that they exercised due diligence to prevent the commission of the offence.

Context

Analysis

A due diligence defense would mean that, in the event that an individual is charged with an offence under this proposed Act, they will not be found guilty if they establish that they exercised due diligence to prevent the commission of the offence.

This defense would only be available with respect to a contravention of clauses 5(1) or (2), and it would ultimately be up to a court to determine whether anyone charged with any offence under clauses 5(1) and (2) exercised due diligence.

Clause 7 is not included in this clause because it would require that a person knowingly provided false or misleading information, rendering it ineligible from a due diligence defense pursuant to this clause.

Clause 24 – Obstruction

Proposal

Every person commits an offence if they knowingly obstruct the Commissioner, or any person acting on the Commissioner’s behalf or under the Commissioner’s direction, in the conduct of any of the Commissioner’s powers, duties and functions under this Act.

Analysis

Clause 24 constitutes the fourth offence set out in the proposed Act. It is included specifically as an offence and not as a violation because the conduct of knowingly obstructing the Commissioner in the conduct of any of the Commissioner’s powers, duties or functions under the proposed Act, or any person acting on the Commissioner’s behalf, would represent a particularly egregious offence.

Similar offences exist in other Acts of Parliament for those that obstruct other independent commissioners in fulfilling their responsibilities or undertaking investigations. For example, both the Privacy Act and the Access to Information Act set out similar offences where the Commissioners or their respective staff are obstructed in performing their duties.

Determining whether or not obstruction occurred would ultimately be determined by a Court. If the Commissioner is of the view that they, or their staff, are being obstructed they would refer the case to law enforcement authorities of jurisdiction and/or responsible public prosecution authorities.

Clause 25 – Punishment for sections 23 and 24

Proposal

Every person who commits an offence under section 23 or 24 is liable

  1. on conviction on indictment, to a fine of not more than $5 million or to imprisonment for a term of not more than five years, or to both; or
  2. on summary conviction, to a fine of not more than $200,000 or to imprisonment for a term of not more than two years less a day, or to both.

Context

Every person who commits an offence under clauses 23 or 24 would be liable to one of the following:

  1. On conviction on indictment, a fine of up $5 million or to imprisonment for a term of not more than five years, or both; or
  2. On summary conviction, a fine of no more than $200,000 or imprisonment for a term of not more than two years less a day, or to both.

Analysis

As set out in the preamble and in clause 3, the proposed Act seeks to achieve several objectives. These include enhancing transparency over malign foreign influence, deterring foreign governments from trying to influence Canadian political and governmental processes, directly or through proxies, and to strengthen Canadian national security overall.

The fines or terms of imprisonment set out in clause 25 for those found guilty of offense under clauses 23 or 24, either on summary conviction or on conviction on indictment, would send an unambiguous and public signal that undertaking foreign influence activities without registering,

lying to the Commissioner, or obstructing the conduct of the Commissioner’s duties could result in fines or imprisonment.

The consequences also support a key objective of the proposal, which is to deter would-be hostile states, or their proxies, from undertaking potentially registrable activities in non-transparent ways.

At the same time, the fines and imprisonment terms listed here are not intended to significantly deviate from those included in foreign influence transparency schemes set up by some of Canada’s closest allies.

Judicial Review

Clause 26(1)(a) to (c) – Rules Proposal

The following rules apply to judicial review proceedings in respect of decisions made by the Commissioner under this Act:

  1. the judge must provide the applicant and the Commissioner with an opportunity to be heard;
  2. if the judge determines that evidence or other information provided by the Commissioner is not relevant or if the Commissioner withdraws evidence or other information, the judge must not base their decision on that evidence or other information and must return it to the Commissioner; and
  3. the judge must ensure the confidentiality of all evidence and other information that the Commissioner withdraws.

Context

Analysis

For the purposes of the proposed Act, Clause 26(1) seeks to codify certain principles associated with procedural fairness for judicial review of administrative decisions that would apply to judicial review proceedings in respect of decisions made by the Commissioner under this proposed Act.

Clause 26(2) – Protection of information on appeal

Proposal

Subsection (1) applies to any appeal of a decision made by a judge in relation to the judicial review proceedings referred to in this section and to any further appeal, with any necessary modifications.

Context

Analysis

This clause would establish that the rules applying to judicial review proceedings of decisions made by the Commissioner set out in clause 26(1) would also apply to an appeal of a decision made by a judge in relation to the judicial review proceedings referred to in this clause and to any further appeal, with any necessary modifications.

Clause 26(3) – Definition of judge

Proposal

In this section, judge means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.

Context

Analysis

This clause would establish that judge refers to the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.

Regulations

Clause 27 – Regulations

Proposal

The Governor in Council may make regulations regarding any of parts of the act where a regulation-making power is set out. This includes regulations:

  1. Determining the classes of people deemed to be public office holders;
  2. Excluding classes of individuals from the definition of public office holder;
  3. Specifying the information required by registrants;
  4. Setting out the updating of information on the registry;
  5. Setting out the classes of persons and arrangements that may be exempt from a registration duty in this Act set out in 6(1);
  6. Establishing what information is to be displayed publicly in the registry;
  7. Respecting the maintenance, retention, and disposal of information on the registry;
  8. Authorizing government institutions or any other institution set out in regulation to disclose information to the Commissioner; and,
  9. Establish additional situations where disclosure of information is permitted.

Context

Analysis

This clause would set out the list of areas where the Governor in Council may make regulations.

Reports

Clause 28(1) – Annual report

Proposal

The Commissioner must, within six months after the end of each fiscal year, submit to the Minister an annual report on the Commissioner’s activities during that year.

Context

Analysis

Annual reporting is an important mechanism by which independent commissioners can provide parliamentarians, and the Canadian public, with reporting related to their activities.

Given that the Commissioner and, the associated supporting office, are expected to be embedded within a federal government department, the Commissioner would be required to submit the report to the Minister of Public Safety and Emergency Preparedness, who would then be responsible for tabling it.

Clause 28(2)

Proposal

The Minister must cause the report to be tabled in each House of Parliament on any of the first 15 days on which the House is sitting after the day on which the Minister receives it.

Context

Analysis

As indicated in the analysis for clause 28(1), the responsible Minister would be required to cause the report to be tabled within the first fifteen (15) days on which the House is sitting after receiving it. The language setting out that the Minister must cause it to be tabled specifically excludes that the Minister must approve or accept the report before it is tabled, reinforcing the independence of the process and the special report by the Commissioner.

Clause 29(1) and (2) – Special Reports

Proposal

Context

Analysis

Providing the Commissioner with an authority to submit special reports to the Minister at any time and on any matter within the Commissioner’s mandate would constitute an important transparency tool, reinforcing the separation and highlighting the Commissioner's independence from political or other direction or interference, and providing flexibility outside of annual reporting obligations to keep the public apprised of important or emerging issues related to foreign influence in Canada.

While the report would be provided to the responsible Minister, that same Minister under clause 29(2) would be required to cause the report to be subsequently tabled in Parliament. Importantly, the Minister has no power to direct the initiation, production, or content of any such reports.

Clause 30(1) – Consultation

Proposal

In preparing an annual or special report, the Commissioner must consult with the deputy heads concerned to ensure that it does not contain information whose disclosure would be injurious to international relations, national defence or national security.

Context

Analysis

The intended purpose of the consultation is to ensure that there is no information included in the reports, the disclosure of which would be injurious to international relations, national defence or national security.

Similar provisions exist in other acts where special or annual reports may cover activities related to Canada’s national security and intelligence activities. For example, the National Security Intelligence Review Agency Act sets out several provisions concerning the protection of confidential information in their reporting, including consultation with deputy heads.

Clause 30(2)

Proposal

In this section, deputy head has the same meaning as in section 2 of the National Security and Intelligence Review Agency Act.

Context

Analysis

This clause would set out the meaning of the term above in relation to consultation required for tabling reports in Parliament. Importantly, the consultation, with deputy heads, is intended to ensure reports do not contain information that may be injurious to international relations, national defence or national security. It is not intended to be a consultation on the report as a whole.

Review

Clause 31(1) – Review of Act

Proposal

During the fifth year after the day on which this Act receives royal assent, and during the fifth year after the day on which a report is submitted under subsection (2), a comprehensive review of this Act and its operation must be undertaken by the committee of the Senate or of the House of Commons that is designated or established for that purpose.

Context

Analysis

A five (5) year review period is set out in this clause to ensure that Parliament would be afforded an opportunity to review the proposed Act. Ensuring that the proposed Act is designed to reflect the nature of present and future threats is critical to its efficacy.

Clause 31(2) – Report

Proposal

The committee must, within one year after the review is undertaken — or within any further period that the Senate or the House of Commons, as the case may be, authorizes — submit to the appropriate House a report on the review that includes a statement of any changes that the committee recommends.

Context

Analysis

A report on the outcomes of parliamentary review as set out in Clause 31(1) would be required within one (1) year after that review is complete, unless Parliament authorizes a different timeline.

Consequential Amendments

Clause 114 – Part II of Schedule I of the Public Service Superannuation Act

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Proposal

Part II of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order:

Foreign Influence Transparency Commissioner

Commissaire à la transparence en matière d’influence étrangère

Context

Analysis

A consequential amendment to the Public Service Superannuation Act would be required to ensure that the new Commissioner is included therein.

Clause 115(1) – Section 2 of the National Security and Intelligence Committee of Parliamentarians Act

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department means, except in subsection 25(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 or 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)

Proposal

The definition department in section 2 of the National Security and Intelligence Committee of Parliamentarians Act is replaced by the following:

department means, except in subsection 25(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 or 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, the Canadian Forces or the Foreign Influence Transparency Commissioner appointed under subsection 9(1) of the Foreign Influence Transparency and Accountability Act. (ministère)

Context

Analysis

This proposed clause would be required to ensure that the proposed Act has concurrence with the National Security and Intelligence Committee of Parliamentarians Act and that the National Security and Intelligence Committee of Parliamentarians is provided the authority to review the activities of the Commissioner.

Clause 115(2) – Section 2 of the National Security and Intelligence Committee of Parliamentarians Act

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appropriate Minister means

  1. with respect to a department named in Schedule I to the Financial Administration Act, the Minister presiding over the department;
  2. 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;
  3. 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;

(c.1) 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

  1. with respect to the Canadian Forces, the Minister of National Defence. (ministre compétent)

Proposal

The definition appropriate Minister in section 2 of the Act is amended by striking out “or” at the end of paragraph (c.1), by adding “or” at the end of paragraph (d) and by adding the following after paragraph (d):

  1. with respect to the Foreign Influence Transparency Commissioner appointed under subsection 9(1) of the Foreign Influence Transparency and Accountability Act, the Minister of Public Safety and Emergency Preparedness. (ministre compétent)

Context

Analysis

This proposed clause would be required to ensure that the proposed Act has concurrence with the the National Security and Intelligence Committee of Parliamentarians Act and that the committee is provided the authority to review the activities of the Commissioner.

Clause 116(1) – Section 2 of the National Security and Intelligence Review Agency Act

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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)

Proposal

The definition department in section 2 of the National Security and Intelligence Review Agency Act is replaced by the following:

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, the Canadian Forces or the Foreign Influence Transparency Commissioner appointed under subsection 9(1) of the Foreign Influence Transparency and Accountability Act. (ministère)

Context

Analysis

This proposed clause would be required to ensure that the proposed Act has concurrence with the the National Security and Intelligence Review Agency Act and that the National Security and Intelligence Review Agency is provided the authority to review the activities of the Commissioner related to national security or intelligence.

Clause 116(2) – Section 2 of the National Security and Intelligence Review Agency Act

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appropriate Minister means

  1. with respect to a department named in Schedule I to the Financial Administration Act, the Minister presiding over the department;
  2. 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;
  3. 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;
  4. 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
  5. with respect to the Canadian Forces, the Minister of National Defence. (ministre compétent)

Proposal

The definition appropriate Minister in section 2 of the Act is amended by striking out “or” at the end of paragraph (d), by adding “or” at the end of paragraph (e) and by adding the following after paragraph (e):

Context

Analysis

This proposed clause is required to ensure that the proposed Act has concurrence with the the National Security and Intelligence Review Agency Act and that the National Security and Intelligence Review Agency (NSIRA) is provided the authority to review the activities of the Commissioner.

Coming into force

Clause 117(1) – Order in council

Proposal

Subject to subsections (2) and (3), this Part comes into force on a day to be fixed by order of the Governor in Council.

Context

Analysis

This clause sets out that the law would come into force at a date and time to be fixed by the Governor in Council.

A coming into force set for at a time to be determined after royal assent is required for several reasons:

Firstly, the law seeks to appoint a Commissioner to oversee the administration of the proposed Act, as well as a supporting office. Time would be required to establish and staff the office before the registry could be meaningfully operationalized. This would include undertaking the important and necessary work to ensure there is a robust information technology infrastructure in place.

In addition, Canadians would need time to familiarize themselves with the law and how it may apply to them. This includes organizations in certain sectors who may be impacted by the proposed Act.

Clause 117(2) – Order in council

Proposal

Paragraph (b) of the definition public office holder in section 2 of the Foreign Influence Transparency and Accountability Act, as enacted by section 113, and paragraph 4(b) of that Act come into force on a day to be fixed by order of the Governor in Council, but that day must not be before the day referred to in subsection (1).

Context

Analysis

This clause would provide authority to the Governor in Council to bring the proposed Act into effect to cover political and governmental processes and public office holders of provincial and territorial governments, effectively “scoping in” these levels of government into the proposed Act.

The Order in Council cannot occur before the proposed Act comes into force to cover federal officials and processes, as set out in clause 117(1). The intent is that the law should cover federal political and government processes and public office holders before any other level of government in Canada.

Clause 117(3) – Order in council

Proposal

Paragraphs (c) and (d) of the definition public office holder in section 2 of the Foreign Influence Transparency and Accountability Act, as enacted by section 113, and paragraph 4(c) of that Act come into force on a day to be fixed by order of the Governor in Council, but that day must not be before the day referred to in subsection (1).

Context

Analysis

This clause would provide authority to the Governor in Council to bring the proposed Act into effect to cover political and governmental processes and public office holders of Indigenous governments and any other entity that represents the interests of First Nations, the Inuit or the Métis (clause 4(c)).

Following this Order in Council, communicating with a public office holder of an Indigenous government or organization under the definitions in clause 2 about a political or governmental process in Canada would trigger the duty to provide information to the Commissioner in clause 5(1).

Similarly, undertaking one of the other two influence activities (communication with the public, disbursement of money or things of value) at the direction of or in association with a foreign principal in relation to a political or governmental process would also be registrable.

The Order in Council cannot occur before the proposed Act comes into force to cover federal officials and processes, as set out in clause 117(1). The intent is that the law should cover federal political and government processes and public office holders before any other level of government in Canada.

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