Order Fixing the Day After the Day on which this Order is Made as the Day on which Part 1.1 and Certain Provisions of that Act Come into Force: SI/2019-71
Canada Gazette, Part II, Volume 153, Number 15
SI/2019-71 July 24, 2019
NATIONAL SECURITY ACT, 2017
Order Fixing the Day After the Day on which this Order is Made as the Day on which Part 1.1 and Certain Provisions of that Act Come into Force
P.C. 2019-1092 July 12, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness,
- (a) pursuant to section 169.1 of the National Security Act, 2017, chapter 13 of the Statutes of Canada, 2019, fixes the day after the day on which this Order is made as the day on which Part 1.1, other than section 49.2, of that Act comes into force;
- (b) pursuant to subsection 171(1) of that Act, fixes the day after the day on which this Order is made as the day on which sections 94, 96, 97, 102, 107 and 108, and the provisions enacted by them, and sections 110 and 111 of that Act come into force;
- (c) pursuant to subsection 171(2) of that Act, fixes the later of the day after the day on which this Order is made and the day after the day fixed under section 169 of that Act as the day on which section 101 of that Act comes into force; and
- (d) pursuant to subsection 173(2) of that Act, fixes the day after the day on which this Order is made as the day on which section 128, subsection 129(1), sections 131, 134 and 135, subsections 137(2), (4), (5) and (7) and section 139 of that Act come into force.
(This note is not part of the Order.)
Pursuant to section 169.1 of the National Security Act, 2017 (the Act), this Order fixes the day after the day on which the Order is made as the day on which Part 1.1, other than section 49.2, of that Act comes into force.
Pursuant to subsection 171(1) of the Act, this Order fixes the day after the day on which the Order is made as the day on which sections 94, 96, 97, 101, 102, 107 and 108, and the provisions enacted by them, as well as sections 110 and 111 of that Act come into force.
Pursuant to subsection 171(2) of the Act, this Order fixes the later of the day after the day on which the Order is made and the day after the day fixed under section 169 of the Act as the day on which section 101 of that Act comes into force.
Pursuant to subsection 173(2) of the Act, this Order fixes the day after the day on which the Order is made as the day on which section 128, subsection 129(1), sections 131, 134 and 135, subsections 137(2), (4), (5) and (7) and section 139 of that Act come into force.
The objective of this Order is to set the coming-into-force dates for Part 1.1 (the Avoiding Complicity in Mistreatment by Foreign Entities Act), Part 4 (amendments to the Canadian Security Intelligence Service Act), and some provisions in Part 6 (amendments to the Secure Air Travel Act) of the National Security Act, 2017.
The National Security Act, 2017 is the culmination of a process that began in 2016 with the publication of Our Security, Our Rights: National Security Green Paper, 2016, which was created to engage Canadians, stakeholders and subject matter experts in discussions related to national security and the protection of rights and freedoms. The National Security Act, 2017 constitutes a comprehensive review of Canada’s national security framework and implements a number of measures that will strengthen Canada’s ability to address new threats, safeguard rights and freedoms, and enhance accountability and oversight.
Part 1.1: Avoiding Complicity in Mistreatment by Foreign Entities Act
The Government strongly condemns mistreatment and torture, and is committed to making Canada’s information-sharing regime more transparent, consistent, and accountable through enhancing oversight on a government-wide basis. The Avoiding Complicity in Mistreatment by Foreign Entities Act is one measure the Government has enacted to help achieve this commitment. The Avoiding Complicity in Mistreatment by Foreign Entities Act authorizes, and in some cases requires, the Governor in Council to issue written directions to the deputy heads of federal departments and agencies respecting the disclosure of and request for information that would result in a substantial risk of mistreatment of an individual by a foreign entity and the use of information that is likely to have been obtained as the result of mistreatment of an individual by a foreign entity.
The purpose of the Avoiding Complicity in Mistreatment by Foreign Entities Act is to build upon existing practices for avoiding complicity in mistreatment by foreign entities, as set out in ministerial directions issued in 2017. At that time, the Minister of Public Safety and Emergency Preparedness (the Minister) issued revised ministerial directions (initially issued in 2011) to the Canadian Security Intelligence Service (CSIS), the Canada Border Services Agency (CBSA), and the Royal Canadian Mounted Police (RCMP). Additionally, the ministers of Foreign Affairs and National Defence issued the same ministerial directions to Global Affairs Canada (GAC), the Department of National Defence (DND), the Canadian Armed Forces (CAF), and the Communications Security Establishment (CSE). The revisions to the existing ministerial directions were necessary to establish clarity around the decision-making process for departments and agencies that conduct information sharing with foreign entities and to enhance accountability and transparency requirements of these activities.
The ministerial directions clearly prohibit
- the disclosure of information that would result in a substantial risk of mistreatment of an individual by a foreign entity;
- the making of requests for information that would result in a substantial risk of mistreatment of an individual by a foreign entity; and
- certain uses of information that was likely obtained through the mistreatment of an individual by a foreign entity.
After these ministerial directions were issued, it was determined that to further demonstrate the Government’s commitment to make information-sharing practices more transparent, consistent and accountable, the Governor in Council should be able to issue written directions to departments and agencies that may be at risk of complicity in mistreatment as a result of their information-sharing activities with foreign entities. The same deputy heads who received ministerial directions in 2017 are listed in the Avoiding Complicity in Mistreatment by Foreign Entities Act as requiring the Governor in Council to issue written directions to them. Following a recommendation from the appropriate minister, the Governor in Council is allowed to issue these written directions to departments or agencies not already listed in the Avoiding Complicity in Mistreatment by Foreign Entities Act, including those without a traditional national security or intelligence mandate. This ensures that there is a whole-of-government ownership and responsibility for avoiding complicity in mistreatment.
Part 4: Canadian Security Intelligence Service Act
The Canadian Security Intelligence Service Act (the CSIS Act) is being amended by Part 4 in two important ways. First, the amendments give the CSIS the authority to collect information that may not be directly related to a known threat to national security, but that may assist the CSIS in carrying out an investigation. This new authority is intended to enhance the CSIS’s ability to perform its duties and functions, while continuing to respect the rights of Canadians. More specifically, the new authority creates a mechanism for the CSIS to collect datasets, such as a collection of travel records, if the dataset is likely to assist in an investigation. The retention of foreign datasets will be authorized by the Minister (or person designated by the Minister) and approved by the new Intelligence Commissioner created by the Intelligence Commissioner Act. Protections for Canadians are built into the regime, through a requirement to obtain pre-authorization from the Federal Court in order to retain datasets containing information on Canadians.
Second, the CSIS Act will be amended to create a new procedure to authorize CSIS employees to commit acts that would otherwise be unlawful, subject to strict safeguards. CSIS employees, or those acting at their direction, sometimes have opportunities to collect intelligence in ways that involve a risk of engaging in unlawful activities, yet they are also bound to follow Canadian law. This new authority allows them to collect this intelligence in situations where it is justified, without undermining the rule of law. The new procedure requires an annual determination by the Minister of a list of the types of acts that may be performed, to be approved by the Intelligence Commissioner, as well as approval for each act by a senior official at the CSIS. The Minister will then make available to the public an annual report summarizing the acts that were performed each year.
Part 6: Secure Air Travel Act
Under the Passenger Protect Program (the PPP) framework and its enabling legislation, the Secure Air Travel Act (SATA), the Minister has, among other things, the authority to list an individual that the Minister suspects will travel by air for the purpose of committing certain terrorism offences. Under Part 6 of the Act, a number of amendments were made to enhance the PPP. Through this Order, the following amendments will come into force:
- The Minister’s new exemption powers (i.e. whereby the Minister can exempt air carriers, by order, from compliance with the requirements to screen against the SATA List. This power would only be used in urgent situations or when the Minister is running diagnostic tests);
- The Minister will have the possibility to add personal prescribed information on the SATA List about those persons being listed;
- The provision allowing the Minister to disclose to a parent or guardian/tutor of a child that the child is not a listed person;
- The Minister now has 120 days (instead of 90 days) to make a decision on whether to approve or deny administrative recourse applications for the removal of the applicant’s name from the SATA List. If no decision is made within this time frame, the applicant’s name is removed;
- There is currently a provision in SATA that states that the Minister of Transport must destroy any information received from an air carrier or operator of an aviation reservation system within seven days after the day on which it is received, unless there are reasonable purposes to keep it under SATA. This requirement has been amended to expand the scope of the destruction of information provision by adding two similar provisions, one specific to the Minister and another one to any of the persons and entities mentioned in section 10 of SATA;
- Provisions to confirm specific instances when the SATA List or that a person is on the SATA List can be shared, and with whom (partners of the Minister identified in the legislation and foreign entities under written arrangement), are added.
Not all of the SATA amendments under the Act come into force through this Order. A number of SATA amendments, particularly those relating to the transfer in responsibility for screening passengers against the SATA List from air carriers to the Government of Canada (through government-controlled centralized screening) and the establishment of a redress system, will be brought into force at a later date.
Through this Order, a number of provisions under the National Security Act, 2017 will take effect, and result in (i) establishing, or in some cases building upon, government-wide information-sharing practices for avoiding complicity in mistreatment by foreign entities; (ii) enhancements to the CSIS’s authority to address threats to national security; and (iii) enhancements to the PPP.
There are no significant financial costs associated with the coming into force of these provisions for Canadians, businesses, or external stakeholders. A majority of these legislative changes primarily impact federal departments and agencies.
In the fall of 2016, the Government undertook extensive consultations with the general public through the National Security Consultations, which covered a number of issues, including countering radicalization to violence, oversight and accountability, threat reduction and the Anti-terrorism Act, 2015 (the former Bill C-51), which received royal assent on June 18, 2015. These broad consultations across the country received over 95 000 responses through letters, online platforms, round tables, and town hall meetings.
The input guided the development of Bill C-59, and led to the creation of the Avoiding Complicity in Mistreatment by Foreign Entities Act and the amendments to the CSIS Act and SATA.
Part 6: Secure Air Travel Act
Public Safety Canada, Transport Canada and the Canada Border Services Agency officials also met with advocacy groups and non-governmental organizations on the centralized screening and the redress system. Stakeholders sought clarity on how the redress system would work, how long it would take to implement, how different it is from what is currently in place, as well as how it would prevent children from being identified as potential matches. Federal officials explained that a phased implementation plan was being contemplated and is recommended to accommodate the scope of changes that have to occur to support a successful transition to the centralized screening process. For this reason, the provisions related to the centralized screening process and the new redress system are not being brought into force through this Order.
National Security Policy Directorate
National and Cyber Security Branch
Public Safety Canada