Bill C-679

2nd Session, 41st Parliament,

62-63-64 Elizabeth II, 2013-2014-2015

house of commons of canada

BILL C-679

An Act to Establish the Communications Security Establishment Review Committee 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 Communications Security Establishment Review Committee Act.

INTERPRETATION

2. The following definitions apply in this Act.

“Chief” means the Chief of the Communications Security Establishment referred to in subsection 273.62(2) of the National Defence Act.

“Establishment” means the Communications Security Establishment continued under subsection 273.62(1) of the National Defence Act.

“Minister” means the Minister of National Defence.

“post-secondary educational institution” has the same meaning as in subsection 146.1(1) of the Income Tax Act.

“Review Committee” means the Communications Security Establishment Review Committee established under section 3.

REVIEW COMMITTEE

3. (1) There is established a committee, to be known as the Communications Security Establishment Review Committee, consisting of a Chairperson and four other members, all of whom are to be appointed by the Governor in Council from among persons who are not members of the Senate or the House of Commons, after consultation by the Prime Minister of Canada 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 twelve members in that House.

(2) Each member of the Review Committee is to be appointed to hold office during good behaviour for a term not exceeding five years.

(3) Each member of the Review Committee is eligible to be reappointed for a term not exceeding five years.

(4) Each member of the Review Committee is entitled to be paid

(a) for each day that the member performs duties and functions under this Act, the remuneration fixed by the Governor in Council; and

(b) reasonable travel and living expenses incurred by the member in the performance of those duties and functions.

4. (1) The Chairperson of the Review Committee must

(a) be qualified to act as the administrator of an organization; and

(b) possess the qualifications specified in one or more of subsections 7(1) to (4).

(2) The Chairperson of the Review Committee is to serve on a full-time basis as the chief executive officer of the Committee.

(3) The Chairperson of the Review Committee may designate another member of the Committee to act as the Chairperson in the event of the absence or incapacity of the Chairperson and, if no such designation is in force or the office of the Chairperson is vacant, the Minister may designate a member of the Committee to act as the Chairperson.

5. The Review Committee may, with the approval of the Treasury Board,

(a) engage an executive director on a full-time basis;

(b) engage a secretary and the staff it requires; and

(c) provide for the terms and conditions of the employment of persons engaged under paragraphs (a) and (b) and fix and pay their remuneration and expenses.

6. Every member of the Review Committee and every person engaged by it must

(a) comply with all security requirements imposed under this Act in respect of an employee; and

(b) take the oath of secrecy set out in the schedule.

7. (1) At least one member of the Review Committee must

(a) be qualified as an expert in the field of information technology; or

(b) be an expert in the Internet (including social media), the global information infrastructure, wireless communication, metadata, smartphones and tablets and possess qualifications in the field of information technology that, in the opinion of the Minister of Justice, would qualify the member to appear as an expert witness in that field before a superior court of a province or territory.

(2) At least one member of the Review Committee must

(a) be qualified as a security expert; or

(b) have knowledge of Canadian and international intelligence systems and practices and expertise in dealing with terrorism, cyber-terrorism and other threats to national security and possess qualifications in respect of the field of security that, in the opinion of the Minister of Justice, would qualify the member to appear as an expert witness in that field before a superior court of a province or territory.

(3) At least one member of the Review Committee must

(a) be a member in good standing of the bar association of a province or territory and have expertise in the law relating to privacy; or

(b) have served as the Privacy Commissioner of Canada or of a province or territory.

(4) At least one member of the Review Committee must be a member in good standing of the bar association of a province or territory and have expertise in administrative law, civil procedure and the law relating to the protection of civil liberties.

8. (1) The functions of the Review Committee are

(a) to review the activities of the Establishment to ensure they are in compliance with the law;

(b) to review generally the performance by the Establishment of its duties and functions and, in particular

(i) to review activities carried out under directions issued by the Minister to the Chief under subsection 273.62(3) of the National Defence Act,

(ii) to review activities carried out under the mandate of the Establishment set out in section 273.64 of the National Defence Act,

(iii) to review activities carried out under authorizations issued by the Minister to the Establishment under section 273.65 of the National Defence Act,

(iv) to review the exchange of information and intelligence between the Establishment and other intelligence services, foreign and domestic,

(v) to review any request relating to the Establishment’s operational activities that has been referred to the Committee by the Minister or by a motion passed by a majority of the Members of the House of Commons,

(vi) to review any regulations that are applicable to the activities of the Establishment, and

(vii) to compile and analyse statistics on the operational activities of the Establishment;

(c) to conduct reviews or to arrange for reviews to be conducted; and

(d) to conduct investigations regarding

(i) complaints made to the Committee under section 12, and

(ii) matters reported to the Committee regarding activities of the Establishment.

(2) As soon as circumstances permit after receiving a request under subparagraph (1)(b)(v), the Review Committee must prepare and submit a report to the Minister stating whether, in its opinion, any of the Establishment’s operational activities referred to in the request

(a) are not authorized by or under the National Defence Act or the Privacy Act or contravenes any directions issued by the Minister; or

(b) involves an unreasonable or unnecessary exercise by the Establishment of any of its powers.

9. (1) The Chairperson of the Review Committee must, as soon as is practicable after becoming aware of any activity of the Establishment that the Committee believes may not be in compliance with the law, notify

(a) the Minister and the Attorney General of Canada of that activity; and

(b) the Director of Public Prosecutions of any suspected contraventions of the Privacy Act or subsections 273.64(2), 273.64(3) or 273.65(1) or section 273.66 of the National Defence Act.

10. (1) The Review Committee may determine the procedure to be followed in the performance of any of its duties or functions.

(2) Despite any other Act of Parliament or any privilege under the law of evidence, but subject to subsection (3), the Review Committee is entitled

(a) to have access to any information under the control of the Establishment that relates to the performance of the duties and functions of the Committee and to receive from the Chief and employees the information, reports and explanations that the Committee deems necessary for the performance of its duties and functions; and

(b) during any investigation referred to in paragraph 8(1)(d), to have access to any information under the control of the Establishment that is relevant to the investigation.

(3) For greater certainty, no information described in subsection (2), 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.

11. (1) For the purpose of ensuring that the activities of the Establishment are carried out in accordance with the National Defence Act, any applicable regulations and any directions issued by the Minister and that the activities do not involve any unreasonable or unnecessary exercise by the Establishment of any of its powers, the Review Committee may

(a) direct the Establishment to conduct a review of specified activities of the Establishment and provide the Committee with a report on the review; or

(b) if it considers that it would be inappropriate for such a review to be conducted by the Establishment, conduct the review itself.

(2) The Review Committee may, if it considers it necessary to do so, conduct a review under paragraph (1)(b) in collaboration with the Security Intelligence Review Committee, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police or any other intelligence review committee established by an Act of Parliament.

(3) On completion of a review conducted under subsection (1), the Review Committee must provide the Minister and the Chief with the following:

(a) in the case of a review conducted by the Establishment, the Establishment’s report to the Committee along with any recommendations that the Committee considers appropriate; and

(b) in the case of a review conducted by the Committee, its own report, containing the findings of the review and any recommendations that the Committee considers appropriate.

(4) On completion of a review conducted under subsection (1), the Review Committee must submit to the Minister a certificate stating the extent to which it is satisfied that the review demonstrates that

(a) the activities of the Establishment that are the subject of the review have been carried out in accordance with the National Defence Act, any applicable regulations and any directions issued by the Minister; and

(b) those activities do not involve any unreasonable or unnecessary exercise by the Establishment of any of its powers.

COMPLAINTS

12. Any person may make a complaint to the Review Committee with respect to any act or thing done by the Establishment and the Committee must investigate the complaint if

(a) the complainant has made a complaint to the Chief with respect to that act or thing, and

(i) the complainant has not received a response within a period of time that the Committee considers reasonable, or

(ii) the complainant is dissatisfied with the response given; and

(b) the Committee is satisfied that the complaint is not trivial, frivolous, vexatious or made in bad faith.

13. Nothing in this Act precludes the Review Committee from receiving and investigating complaints described in section 12 that are submitted by a person authorized by the complainant in writing to act on behalf of the complainant, and a reference to a complainant in any other section includes a reference to a person so authorized.

14. A complaint must be made to the Review Committee in writing unless the Committee authorizes otherwise.

INVESTIGATIONS

15. (1) Every investigation of a complaint by the Review Committee must be conducted in private.

(2) In the course of an investigation of a complaint by the Review Committee, the complainant and the Chief must be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, have access to or comment on representations made to the Review Committee by any other person.

16. In the course of an investigation of a complaint, the Review Committee may, if it considers it to be appropriate, ask the Canadian Human Rights Commission or the Privacy Commissioner for their opinion or comments with respect to the complaint.

17. The Review Committee has, in relation to the investigation of any complaint under this Act, power

(a) to summon and enforce the appearance of persons before the Committee and to compel them to give oral or written evidence on oath and to produce any documents and things that the Committee considers necessary to the full investigation and consideration of the complaint in the same manner and to the same extent as a superior court of record;

(b) to administer oaths; and

(c) to receive and accept the evidence and other information, whether on oath or by affidavit or otherwise, that the Committee sees fit, whether or not that evidence or information is or would be admissible in a court of law.

18. Except in a prosecution of a person for an offence under section 131 of the Criminal Code, evidence given by a person in connection with an investigation of a complaint made under this Act is inadmissible against that person in a court or in any other proceedings.

19. The Review Committee must

(a) on completing an investigation of a complaint made under this Act, provide the Minister and the Chief with a report containing the findings of the investigation and any recommendations that the Committee considers appropriate; and

(b) at the same time as, or after, a report is provided under paragraph (a), report the findings of the investigation to the complain-ant and may, if it thinks fit, report to the complainant any recommendations referred to in that paragraph.

REPORT

20. The Review Committee must, not later than September 30 in each fiscal year, submit to the Minister a report of the activities of the Committee during the preceding fiscal year and the Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day the Minister receives it.

CONSEQUENTIAL AMENDMENTS

21. Item 20 of the Schedule to the Canada Evidence Act is replaced by the following:

20. The Chairperson of the Communications Security Establishment Review Committee, except where the hearing or proceeding is open to the public

22. Part III of Schedule VI to the Financial Administration Act is amended by striking out, in column I, the reference to

Office of the Communications Security Establishment Commissioner

and the corresponding reference in column II to “Commissioner of the Communications Security Establishment”.

23. Section 273.63 of the National Defence Act is repealed.

24. Subsection 273.65(8) of the Act is repealed.

25. The schedule to the Security of Information Act is amended by adding the following in alphabetical order:

Communications Security Establishment Review Committee

COMING INTO FORCE

26. This Act comes into force on a day to be fixed by the Governor in Council.