Bill C-622

2nd Session, 41st Parliament,

62-63 Elizabeth II, 2013-2014

house of commons of canada

BILL C-622

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

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

SHORT TITLE

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

PART 1

AMENDMENTS TO THE NATIONAL DEFENCE ACT

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 (1) The definition “private communications” in section 273.61 of the National Defence Act is repealed.

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

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

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

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

(2) The duties of the Commissioner are

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) the consent of persons whose communications may be intercepted or acquired cannot reasonably be obtained;

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

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

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

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

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

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

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

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

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

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

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

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

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

PART 2

AN ACT TO ESTABLISH THE INTELLIGENCE AND SECURITY COMMITTEE OF PARLIAMENT

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

An Act to establish the Intelligence and Security Committee of Parliament

SHORT TITLE

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

INTERPRETATION

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

COMMITTEE, MEMBERS AND STAFF

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SECURITY AND CONFIDENTIALITY

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

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

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

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

MANDATE OF THE COMMITTEE

15. The mandate of the Committee is to

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

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

(c) report publicly on its activities, findings and recommendations.

POWERS OF THE COMMITTEE

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

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

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

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

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

REPORT

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

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

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

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

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

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

CONSEQUENTIAL AMENDMENTS

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

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

COMING INTO FORCE

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