Enhancing Accountability and Transparency
The results of the Government’s consultation on national security demonstrated a demand from the public for increased accountability and greater transparency on national security matters.
An Act respecting national security matters (the National Security Act, 2017) has received Royal Assent. The Act addresses this demand in a number of ways, including by:
- strengthening accountability through the creation of a new, comprehensive review body, the National Security and Intelligence Review Agency (NSIRA);
- increasing transparency and accountability relating to the Government’s commitment to avoiding complicity in mistreatment by foreign entities through the enactment of the Avoiding Complicity in Mistreatment by Foreign Entities Act; and,
- enhancing oversight through the appointment of an Intelligence Commissioner.
These measures will all work to increase accountability and transparency of national security matters.
Strengthening accountability through the creation of a comprehensive national review body: the National Security and Intelligence Review Agency (NSIRA)
The creation of the National Security and Intelligence Review Agency (NSIRA) represents an historic change that will enable comprehensive and integrated scrutiny of national security and intelligence activities across the Government of Canada.
Once in effect, the NSIRA will replace the current “siloed” approach to national security review by establishing a single, arms-length body with a government-wide mandate.
The NSIRA will replace the Security Intelligence Review Committee (SIRC) and will also take on the review and complaints responsibilities of the Office of the Communications Security Establishment Commissioner (OCSEC), as well as the national security-related review and complaints responsibilities of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police (CRCC).
The NSIRA will work closely with the Office of the Privacy Commissioner of Canada and the CRCC to avoid overlap and duplication of work.
Under the previous review system, review bodies often could not share sensitive information between one another or conduct joint reviews, limiting their ability to delve into important cross-cutting issues. A significant benefit of the new model is that the NSIRA will be able to review the activities of any department and agency with national security responsibilities across government. This model recognizes the increasingly interconnected nature of the government’s national security and intelligence activities.
Once in effect, the NSIRA will have access to any information, except for Cabinet confidences, that is in the possession or under the control of government department.
The NSIRA will ensure that Canada’s national security agencies are complying with the law and that their actions are reasonable and necessary. It will have full and independent authority to determine what government activities it will review. This includes the review of ongoing activities.
NSIRA will provide its findings and recommendations to relevant Ministers through classified reports. It will also produce an unclassified annual report to the Prime Minister who must table that report in Parliament.
This new review agency will complement the important work of the National Security and Intelligence Committee of Parliamentarians (NSICoP). Together, they will provide comprehensive scrutiny of Canada’s national security and intelligence activities.
The NSIRA will be led by a committee of up to seven members, appointed by the Governor in Council on the advice of the Prime Minister and in consultation with the leaders of the opposition parties.
Increasing transparency and accountability through the enactment of the Avoiding Complicity in Mistreatment by Foreign Entities Act
The Avoiding Complicity in Mistreatment by Foreign Entities Act establishes a mechanism for the Governor in Council to issue directions to departments and agencies regarding the use of information that is likely to have been obtained through the mistreatment of an individual by a foreign entity as well as the disclosure of or request for information that would result in a substantial risk of mistreatment.
Governor in Council direction pursuant to the Avoiding Complicity in Mistreatment by Foreign Entities Act replaces the Ministerial Directions previously issued by the Minister of Public Safety and Emergency Preparedness, the Minister of National Defence and the Minister of Foreign Affairs to their respective departments and agencies.
The Avoiding Complicity in Mistreatment by Foreign Entities Act makes it mandatory for directions to be issued to the deputy heads of seven key departments or agencies. It also provides the Governor in Council, on the recommendation of the appropriate Minister, with authority to issue directions to any other departments or agencies that carry out information sharing activities with foreign partners that may give rise to the concerns addressed by the Act.
The implicated departments and agencies are required to produce an annual report on the implementation of these directions, which is to be provided to the relevant Minister, the NSICoP, and the relevant review body. Further, each implicated department and agency must also make an unclassified version of this report available to the public as soon as possible after submitting the report to the relevant Minister.
Enhancing oversight through the appointment of an Intelligence Commissioner (IC)
The new legislation allows for the appointment of an Intelligence Commissioner (IC) to conduct an oversight function for the authorization of certain intelligence activities prior to their conduct.
The appointment of an IC will help to build public confidence that Canada’s national security and intelligence community continues to operate with respect for Canadian law and values. The IC will produce a public annual report on its activities.
Once in effect, the IC will have the mandate to independently oversee the authorization of certain activities of the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment (CSE).
In regards to CSIS, the IC will have a mandate to review and approve the reasonableness of authorizations/determinations made with respect to:
- the Minister of Public Safety and Emergency Preparedness’ decisions regarding classes of activities that could be undertaken by CSIS pursuant to the authorization scheme for acts or omissions that would otherwise constitute offences;
- the Minister’s decisions regarding classes of Canadian datasets that CSIS can collect;
- authorizations by the Minister (or his delegate) for the retention of foreign datasets by CSIS; and,
- the querying of datasets by CSIS in exigent circumstances.
In regards to CSE, the IC will have a mandate to review the reasonableness of the conclusions on the basis of which the Minister of National Defence issues authorizations with respect to:
- foreign intelligence collection by CSE; and,
- cybersecurity activities by CSE;
Increasing transparency on national security
Through its consultation on national security, the Government also heard strong calls for increased transparency on national security.
New measures are being put in place to meet this demand by:
- Adopting a National Security Transparency Commitment to help Canadians understand what the Government does to protect national security, how these efforts are consistent with Canadian values and why the work is effective and important. All departments and agencies with national security responsibilities will be accountable to implement this commitment;
- Putting in place an advisory group on transparency. This group, which will be made up of civil rights advocates, experts in security and intelligence and open government, will help guide the implementation of the Government’s National Security Transparency Commitment; and,
- Providing Canadians with an easy means to access released information and track progress through a Government of Canada web presence.
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