Questions and Answers: Enhancing Accountability and Transparency
The National Security and Intelligence Review Agency (NSIRA)
How many departments and agencies would be reviewed by the NSIRA?
The NSIRA would be mandated to review all national security and intelligence activities across the government, regardless of the department, agency, or parent Crown corporation in which the activities were taking place. The proposed legislation would not contain a list of federal entities subject to review. This flexible approach would ensure that the NSIRA's mandate would not erode as national security responsibilities evolved over time. It also matches the approach taken in Bill C-22 with regard to the proposed National Security and Intelligence Committee of Parliamentarians (NSICOP).
Who will decide what the NSIRA reviews?
The NSIRA would have full and independent authority to determine what government activities it would review. This would include the review of ongoing activities.
If an independent review was needed, a Minister could also refer any matter that related to national security or intelligence to the NSIRA for review.
What effects will this have on all the employees currently employed at SIRC and OCSEC and other independent review bodies?
The NSIRA would assume the review and complaints functions of the Security Intelligence Review Committee (SIRC) and the Office of the Communications Security Establishment Commissioner (OCSEC).
To preserve their specialized expertise and provide continuity for employees, the NSIRA would inherit SIRC's personnel, while the IC would inherit OCSEC's employees.
What effect will this have on the Civilian Review and Complaints Commission (CRCC)?
The NSIRA would also take on the review of the national security activities of the RCMP. The RCMP's existing independent review body, the CRCC, would continue to review the RCMP's activities unrelated to national security. Along similar lines, the CRCC would continue to respond to public complaints against the RCMP, except for those related to national security, which would be referred to the NSIRA.
How long will it take for the NSIRA to be put in place? What will it cost?
Once the proposed legislation is in effect, the NSIRA would begin to grow into its new responsibilities. The NSIRA would be provided with appropriate resources commensurate to its substantial responsibilities. The Government of Canada will make a total investment of 97.3M, over five years, to ensure that initiatives for accountability, oversight, review and transparency are adequately resourced.
Who would be part of the NSIRA?
The NSIRA would be led by a committee of up to seven members, appointed on the advice of the Prime Minister in consultation with the leaders of the opposition parties. Members would serve on a part-time basis, although the Chair and Vice-chair could serve on a full-time basis if appropriate. The NSIRA would be supported by a sizeable full-time staff of security-cleared national security experts and technical advisors.
What safeguards will be in place to ensure that NSIRA gets the access it needs to do its job?
The proposed legislation clearly sets out that the NSIRA would have unfettered access to all information that it considered related to the fulfillment of its mandate. The one exception would be Cabinet confidences.
If the NSIRA felt that it was being improperly denied access to information, it could raise the issue in a report to Ministers or publicly to Parliament.
Are there any provisions that would allow a Minister or the Prime Minister to halt a review?
No. The NSIRA would be fully independent with regard to the national security or intelligence activities it chose to review, including ongoing activities. It would be required to report potentially illegal activity to the Attorney General. If the NSIRA felt that an issue merited the immediate attention of Parliament and of Canadians, it could, at any time, cause a special report to be tabled in Parliament.
Would the NSIRA be able to review the CBSA?
The NSIRA would have the authority to review all national security and intelligence activities across the Government of Canada, including those of the CBSA. The CBSA's activities not related to national security or intelligence would not be subject to review by the NSIRA.
What distinguishes the NSIRA from the National Security Committee of Parliamentarians (NSICOP)?
The NSIRA would be an ideal complement to the NSICOP proposed in Bill C-22. The NSIRA's review mandate would match the review mandate proposed for the NSICOP. While both bodies would be independent with regard to their topics of review, it is expected that the two bodies would typically focus on different aspects of the national security and intelligence system. The NSIRA would perform routine but essential and very detailed review and compliance work. This would free the parliamentarians of the NSICOP to devote more time to considering the broader framework for national security and intelligence, as well as any pressing issues or concerns they deemed appropriate.
How would the work of the NSIRA be coordinated with NSICOP to ensure no duplication?
The NSIRA and NSICOP would be authorized to cooperate and coordinate their work to avoid duplication of effort. They could also exchange classified information to assist each other's reviews and provide technical assistance. Each body would fulfill a distinct but vital role.
What is the difference between the NSIRA and the Intelligence Commissioner (IC)?
The NSIRA and IC would play distinct roles. The IC's mandate would be to approve authorizations of certain national security and intelligence activities prior to their conduct. The NSIRA would review national security and intelligence activities after they had occurred, or while they were occurring, to assess
The creation of an Intelligence Commissioner (IC)
Could this additional layer of approval impede the ability of intelligence agencies to act in a time-efficient manner on national security investigations?
The Intelligence Commissioner (IC) would have 30 days to make a decision, unless the appropriate Minister and the IC agree on a different time period. There are also specific provisions that deal with exigent circumstances.
For example, Communications Security Establishment's (CSE) legislation currently includes a provision that would allow the Minister, in extremely time-sensitive situations, to authorize activities that are reasonable and proportionate, without consulting the IC. As soon as it is feasible, the Minister would inform the IC and National Security and Intelligence Review Agency (NSIRA) of the activity. The MA authorizing an activity in a time-sensitive situation would be approved for a maximum of five days. The activities undertaken could subsequently be reviewed by NSIRA.
A time-sensitive activity could include life-and-death situations.
In general, the IC, like Ministers, would prioritize decision-making in cases where there is an urgent operational need to ensure that important national security investigations are not delayed.
What effect would this have on the current Commissioner of the Communications Security Establishment Commissioner
The current Office of the Communications Security Establishment Commissioner (OCSEC) would cease to exist under the proposed legislation. OCSEC's review and complaints function would be assumed by the proposed NSIRA and the role of the CSE Commissioner would transition to the new role of Intelligence Commissioner.
What would be the relationship between the IC and the proposed Intelligence and NSIRA?
The IC is intended to enhance independent oversight of certain intelligence activities. The role of the IC would be strictly in relation to approving certain intelligence activities prior to their conduct. The IC would not review intelligence activities after they occurred or while they were occurring. This role would be carried out by the proposed NSIRA, as well as by the National Security and Intelligence Committee of Parliamentarians (NSICOP).
The NSIRA and the NSICOP would be required to provide copies of relevant classified reports to the IC to help inform the IC's conduct of his or her duties.
The Commissioner would be required to provide the NSIRA with copies of its approvals or its reasons for refusal. Though integrity and independence must be maintained, sharing this information provides full visibility to both
What measures would be put in place to ensure the IC is provided with the means to do his or her job effectively?
The IC would be fully independent of the rest of government and the intelligence agencies subject to its oversight.
The IC would have access to all the information provided to the original decision-maker (i.e. the Minister of Public Safety and Emergency Preparedness, the Minister of National Defence, or the Director of CSIS). The legislation also allows for information to be provided by CSE, CSIS and the departments of Public Safety and National Defence in order to promote the development of specialized knowledge. Access to reports produced by the review bodies will also assist in this regard.
How long would it take for the IC to be established? What would it cost?
There are no major costs associated with this proposal, as the current Office of Communications Security Establishment Commissioner (OCSEC) would be transformed into the new Office of the Intelligence Commissioner. It is anticipated that the new Office would be operational immediately following the coming into force of the legislation.
Commitment on National Security Transparency
What kinds of information will the Government release to meet its commitment?
Canadians will see more information provided under all six principles. In particular, four key types of information will be released:
First, the Government will release more information on its national security activities, ensuring Canadians understand what the Government does to protect national security and the scale of those efforts.
Second, the Government will further explain how national security legislation and other authorities are interpreted and applied.
Third, the Government will release information that explains how decisions are made when those legal authorities provide room for discretion. For example, this could include the release of Ministers' directions to their agencies.
Finally, the Government will release information to Canadians on the emerging issues impacting national security, including current efforts and future plans for addressing those issues.
What measures are in place to ensure compliance?
Deputy heads of departments will be accountable to ensure their respective departments or agencies are moving forward on implementing these principles. An internal governance mechanism will be established to track progress.
Who will coordinate this commitment from the Government of Canada?
Public Safety Canada will have a leadership and coordination role for implementing the National Security Transparency Commitment, and supportingthe establishment and operation of the advisory group.
Who will be on the Advisory Group and how will members be chosen?
The advisory group on national security transparency will be composed of civil rights advocates, experts in security, intelligence and open government, as well as stakeholders. Members will be chosen with a view to ensuring that a large cross-section of interests are reflected in the composition of the advisory group
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