Frequently Asked Questions

In June 2019, An Act respecting national security matters (known as the National Security Act, 2017) came into force and reshaped Canada’s national security and intelligence accountability framework.

This included a novel oversight function through the appointment of an Intelligence Commissioner, a unique quasi-judicial function in Canada, set out in the Intelligence Commissioner Act, which came into force in July 2019.

Appointed by the Governor in Council, on the recommendation of the Prime Minister, the IC must be a retired judge of a superior court. He holds office during good behavior for a term of not more than five years and can be reappointed for one additional term of not more than five years. The IC performs his duties and functions on a part-time basis.

The IC’s role and responsibilities are defined and set out in the Intelligence Commissioner Act.

The IC has the rank and all the powers of a deputy head of a department and has control and management of his office and all matters connected with it.

The IC is supported by the Office of the Intelligence Commissioner, a separate agency named in Schedule V to the Financial Administration Act.

The mandate of the Intelligence Commissioner (IC) is set out in the Intelligence Commissioner Act. The IC conducts independent oversight reviews of a quasi-judicial nature.

The IC is an integral part of the decision-making process for certain national security and intelligence activities before they can be conducted. This is a unique oversight function in Canada.

The IC reviews the conclusions of the Minister of National Defence and the Minister of Public Safety, and, where applicable, the Director of the Canadian Security Intelligence Service to determine whether they are reasonable. These conclusions are the basis on which certain authorizations are issued or determinations are made in relation to some activities conducted by either the Communications Security Establishment or the Canadian Security Intelligence Service.

If the IC is satisfied that the conclusions or reasons underpinning these authorizations or determinations are reasonable, the IC must approve them in a written decision that sets out the reasons for doing so. If not so satisfied, the IC must not approve them.

In accordance with their enabling legislation, the Communications Security Establishment (CSE) or the Canadian Security Intelligence Service (CSIS) must obtain from their respective decision-maker (i.e., the Minister of National Defence, the Minister of Public Safety or where applicable the Director of CSIS) an authorization or a determination in relation to certain national security and intelligence activities to be carried out.

Without an authorization or a determination, certain activities carried out by CSE or CSIS to fulfill their mandate might contravene a Canadian law or a law of any foreign state or interfere with the reasonable expectation of privacy of a Canadian or a person in Canada.

If the Intelligence Commissioner (IC) is satisfied that the decision-maker’s conclusions are reasonable, the IC has the statutory authority, in a written decision, to approve the authorization or determination, and must set out his or her reasons for doing so. It is only then that CSE or CSIS may carry out the authorized activities.

Once approved by the IC, an authorization or a determination is valid for a period not exceeding one year, with the exception of an authorization to retain a foreign dataset, which is valid for a period of not more than five years.

The Intelligence Commissioner (IC) performs a quasi-judicial review based on the standard of reasonableness.

The term “reasonable” is not defined in the Intelligence Commissioner Act (IC Act), the Communications Security Establishment Act or the Canadian Security Intelligence Service Act. In jurisprudence, however, it is a term that has been associated with the process of judicial review of administrative decisions. The review by the IC is not, as such, a judicial review, the IC not being a court of law, even though he or she has to be a “retired judge of a superior court”.

Rather, the IC is responsible for performing a quasi-judicial review of the decision-maker’s conclusions (i.e., the Minister of National Defence, Minister of Public Safety or where applicable the Director of the Canadian Security Intelligence Service).

The IC accepts that when Parliament used the term “reasonable” in the IC Act, in the context of a quasi-judicial review of administrative decisions, it intended to give to that term the meaning it has been given in administrative law jurisprudence. In that regard, the IC must be satisfied that the decision-makers’ conclusions bear the essential elements of reasonableness: justification, transparency, intelligibility and establish whether they are justified in relation to the relevant factual and legal contexts. Moreover, the legitimacy and authority of administrative decision-makers within their proper spheres must be recognized and an appropriate posture of respect is to be adopted.

There are seven instances when the Intelligence Commissioner conducts a quasi-judicial review.

In three instances, it relates to the conclusions reached by the Minister of National Defence under the Communications Security Establishment Act when issuing: (1) a foreign intelligence authorization, (2) a cybersecurity authorization or (3) an amended authorization thereof.

Two instances relate to the conclusions reached by the Minister of Public Safety under the Canadian Security Intelligence Service Act when making a determination of classes of either (1) Canadian datasets or (2) acts or omissions that would otherwise constitute offences.

The last two instances relate to the conclusions reached by the Director of CSIS under the Canadian Security Intelligence Service Act when issuing: (1) an authorization to retain a foreign dataset (as a person designated by the Minister of Public Safety) or (2) an authorization to query a Canadian or foreign dataset in exigent circumstances.

The Intelligence Commissioner (IC) has 30 days after receiving notice of the issuance of an authorization or the making of a determination by a decision-maker (i.e., the Minister of National Defence, Minister of Public Safety or where applicable the Director of the Canadian Security Intelligence Service (CSIS)) to render a written decision approving or not the authorization or determination. The IC must set out the reasons for doing so. The 30-day time limit may be extended if agreed upon by the IC and the decision-maker.

However, in the case of an authorization for a query of Canadian or foreign dataset in exigent circumstances issued by the Director of CSIS, the IC must render the decision as soon as feasible.

The IC must provide the decision to the concerned minister or to the Director of CSIS. A copy of all the IC’s decisions are subsequently provided to the National Security and Intelligence Review Agency (NSIRA) for the purpose of assisting that Agency in fulfilling its mandate under the National Security and Intelligence Review Agency Act. 

The Intelligence Commissioner (IC) must be a retired judge of a superior court and is appointed by the Governor in Council, on the recommendation of the Prime Minister. The IC is to hold office during good behavior for a term of not more than five years and can be reappointed for one additional term of not more than five years.

The Office of the Intelligence Commissioner (ICO) is a separate agency of the Federal Public Administration named in Schedule V to the Financial Administration Act.

The ICO is distinct from and independent of the Communications Security Establishment and the Canadian Security Intelligence Service and operates at arm’s length from the Government of Canada.

The ICO is an independent oversight body that supports the Intelligence Commissioner (IC) in the conduct of the quasi-judicial review.

Under the Intelligence Commissioner Act (IC Act), the IC is responsible for conducting quasi-judicial reviews of the conclusions on the basis of which certain ministerial authorizations are issued or amended, and certain determinations are made, under the Communications Security Establishment Act and the Canadian Security Intelligence Service Act. Consistent with the IC’s oversight role, an authorization or determination is valid only after it is approved by the IC.

As per the IC Act, the IC must, each calendar year, submit to the Prime Minister a report with respect to the IC’s activities during the previous calendar year. The Prime Minister is then responsible for tabling the report before each House of Parliament.