Remarks to the Standing Senate Committee on National Security, Defence and Veterans Affairs - November 2, 2026

The Honourable Simon Noël, K.C., Intelligence Commissioner

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Thank you, Madam Chair and honourable members of the Committee, for the opportunity to discuss Bill C-22 with you. I am accompanied by Justin Dubois, Executive Director and General Counsel of my Office.

As Intelligence Commissioner, or IC, I fulfil an independent quasi-judicial oversight role. I approve, or do not approve, ministerial decisions authorizing certain national security and intelligence activities proposed by CSE and CSIS. I assess whether the Minister’s justification for allowing these activities is reasonable, which includes compliance with the Charter.

Part 2 of Bill C-22 would give the IC a new responsibility to review decisions of the Minister of Public Safety to issue orders to electronic service providers.

This responsibility resembles the IC’s current work. I already review ministerial decisions that are not made public. For each ministerial decision, the legislation sets out what the Minister must consider. The privacy of Canadians is a central concern, as it would be under C-22. I would apply the same principles of administrative law applied by Canadian courts. My decisions would be shared with NSIRA, published with appropriate redactions, and subject to judicial review by the Federal Court.

There would nevertheless be new elements. The electronic service provider would have an opportunity to make representations to the Minister, which would form part of the record before me. Also, the IC’s decisions would concern obligations imposed on private-sector service providers, rather than activities conducted by CSIS or CSE.

I welcome the House amendments responding to issues I raised before the House Committee. Orders are now limited to two years. It is now also clear that the Minister must consider the listed factors in deciding whether to make an order.

I would like to raise an additional issue the Committee may wish to consider: whether the Bill should explicitly require the Minister to consider proportionality as a factor when deciding whether to make an order. Subsection 7(3) states only that the Minister must “take into account” the factors. It does not explicitly require the Minister to explain why the balance of the factors favours making the confidential order, or to consider reasonable alternatives. Nor is it clear that the Minister must consider whether it is justified to proceed pursuant to a ministerial order, and therefore by a confidential process.

Nothing prevents the Minister from addressing these questions. But the Bill does not clearly require their consideration. If the intent of ministerial orders is to respond to situations where confidentiality is necessary, a clear proportionality factor that includes reasonable alternatives would ensure the Minister explains this need.

This matters because my review is limited to the conclusions the Minister makes pursuant to subsection 7(3). As the Supreme Court of Canada made clear in Vavilov, I must assess the decision the Minister actually made and the reasons actually given. Making it explicit in the Bill that the Minister must address proportionality would guarantee this factor is included in my review.

Finally, as I have already stated, if additional resources are required for me to fulfil my mandate, I expect they will be provided.

I would be pleased to answer your questions.