National Security and Intelligence

Framework for Defence Intelligence

Key Facts

Strong, Secure, Engaged

Details Crown Prerogative and Defence Intelligence

• Defence intelligence activities are currently conducted under the authority of the Crown prerogative, which is part of the Common law in Canada. National Defence and the Canadian Armed Forces do not have an explicit legislative framework for defence intelligence activities.
• The Crown prerogative is a long-standing, constitutionally founded and legally recognized source of executive authority. It provides the government with the ability to recognize and respond to crises around the world quickly and with flexibility. It also provides a valid legal basis for the Government to authorize the operations and activities of the Canadian Armed Forces.

National Security and Intelligence Committee of Parliamentarians

• The National Security and Intelligence Committee of Parliamentarians, established in 2017, has a mandate to review:
  • The legislative, regulatory, policy, administrative and financial framework for national security and intelligence;
  • Any activity carried out by a department that relates to national security or intelligence, unless the activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security; and
  • Any matter relating to national security or intelligence that a minister of the Crown refers to the Committee.
• The committee’s first Annual Report found that the Department of National Defence and the Canadian Armed Forces internal administrative governance system for defence intelligence was lacking in the following areas:
  • There does not exist a standardized process to determine a nexus between an authorized mission and an intelligence activity;
  • The principal internal governance body that enables the Chief of the Defence Intelligence to fulfill his mandate to bring issues related to sensitive defence intelligence capabilities and relationships to the Deputy Minister and Chief of the Defence Staff did not fulfill its mandate;
  • Limited effort was made to measure and document compliance with the obligations of the Ministerial Directive on Defence Intelligence;
  • The annual reports to the Minister of National Defence on defence intelligence activities do not report on challenges or gaps in the oversight of defence intelligence, and are silent on compliance with respect to key aspects of the Ministerial Directive on Defence Intelligence that deal with identified areas of risk; and
  • There does not exist a standardized process for interdepartmental consultation; and
  • There does not exist a dedicated, external review of defence intelligence activities carried out by National Defence. Neither National Security and Intelligence Committee of Parliamentarians, nor National Security and Intelligence Review Agency, is required to conduct regular reviews of Department of National Defence and the Canadian Armed Forces’ defence intelligence activities.
• The Annual Report also highlighted that National Defence and the Canadian Armed Forces does not conduct defence intelligence activities under an explicit legislative framework. This differs from the legislative frameworks that govern other Canadian security and intelligence organizations.
• Through the Annual Report, the Committee recommended that:
  • National Defence and the Canadian Armed Forces review and strengthen its administrative framework governing defence intelligence activities, particularly with respect to enhancing the Ministerial Directive on Defence Intelligence;
  • Government amend Bill C-59, An Act Respecting National Security Matters, to provide the new National Security and Intelligence Review Agency an explicit annual requirement to review National Defence and Canadian Armed Forces activities related to national security or intelligence; and
  • Government give serious consideration to providing explicit legislative authority for the conduct of defence intelligence activities.
• The Annual Report was referred to the Standing Senate Committee on National Security and Defence and the House Standing Committee on Public Safety and National Security. Each committee held one meeting to assess the Report, but did not launch their own studies or make their own recommendations.
• It should be noted that the Department is implementing a number of the NSICOP recommendations, particularly those dealing with strengthening the administrative framework around defence intelligence activities.

National Security and Intelligence Review Agency

• In the course of its reviews, the National Security and Intelligence Review Agency will ensure that Canada’s government departments that conduct national security or intelligence activities comply with the law and applicable ministerial directions, and that their actions are reasonable and necessary in the course of a department’s exercise of its powers.
• The Agency has independent authority to review any government activity related to national security or intelligence, and it is entitled to have access to any information that is in the possession or under the control of any department, with the exception of information protected by Cabinet confidence. Furthermore, the Agency is entitled to receive from the deputy head or employees of the department concerned any documents and explanations that the Agency deems necessary for the exercise of its powers and the performance of its duties and functions.