Amendments to the CSIS Act – Justification Framework
To pursue its mandate effectively, CSIS must be confident that it has the legal framework and tools to investigate threats to national security and to advise Government accordingly. The work to begin modernizing the CSIS Act serves to address the challenges posed by outdated legislation. It also aims to enhance the transparency and accountability regime under which CSIS operates - a consideration repeatedly emphasized during the Government of Canada’s public consultations on national security.
The changes to the CSIS Act introduced by the National Security Act (2017) acknowledge that it is in the public interest to ensure that CSIS employees can effectively carry out the Service’s intelligence collection duties and functions, including by engaging in covert activities, in accordance with the rule of law. To enable this, the amendments to the CSIS Act provide a limited justification for CSIS employees and persons acting at their direction to carry out activities that would otherwise constitute offences, modelled on the framework already in place for Canadian law enforcement. These activities are routinely used by intelligence agencies and police forces in allied countries throughout the normal course of their duties.
In order to gain valuable intelligence to protect Canada and Canadians, CSIS must gather crucial information and obtain access to entities or individuals who may pose a threat to Canada’s national security. In sectors where the threat actors under investigation are engaged in unlawful activities, employees or persons acting under their direction, such as human sources, may be required to participate to some degree, in order to gain trust, credibility or access. This is particularly true for counter-terrorism operations where the simple act of paying a source for information or providing them with an electronic item such as a cell phone in the hope of gaining their confidence and learning information about their threat-related activities could constitute terrorism offences in the Criminal Code.
The justification framework provides legal authority for CSIS employees who are specifically designated by the Minister of Public Safety and Emergency Preparedness, and persons acting under their direction, such as human sources, to engage in activities that would otherwise constitute offences. This means that when a CSIS employee meets the requirements of the justification framework, they, or the human source acting at their direction, may engage in activities with a suspected terrorist in the hope of gaining their confidence. This protects the employee or person being directed from criminal liability, and renders the intelligence resulting via the activity lawfully collected.
The Act establishes robust measures to ensure this authority is exercised in a manner that is reasonable, proportional, transparent and accountable, including robust review by the Intelligence Commissioner (IC) and the National Security and Intelligence Review Agency (NSIRA). The IC provides independent review of the Minister of Public Safety’s determination of the classes of acts or omissions that can be undertaken by CSIS pursuant to the justification framework. The new National Security and Intelligence Review Agency (NSIRA) will also be notified of all activities undertaken under the justification framework.
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