Proposed Changes in C-59 Relating to CSIS Authorities

Bill C-59 (An act respecting national security matters) proposes a number of measures to enhance Canada's national security framework and keep Canadians safe, while respecting and upholding the Canadian Charter of Rights and Freedoms, and the values of our free and democratic society.

There are four main proposed amendments to the CSIS Act in Bill C-59 relating to the authorities of the Canadian Security Intelligence Service (CSIS):

1. Accountability and Review
2. Threat Reduction Measures
3. Data Analytics
4. Authorization Regime

Accountability and Review

Bill C-59 proposes to create two new entities to strengthen the framework of accountability for Canada's national security and intelligence agencies: the National Security and Intelligence Review Agency (NSIRA) and the Office of the Intelligence Commissioner (IC). The proposed NSIRA will replace the Security Intelligence Review Committee (SIRC) and the Office of the Communications Security Establishment Commissioner (OCSEC). NSIRA will take on a new mandate to review any activity by a government department related to national security or intelligence, with dedicated review of CSIS. The IC - a retired superior court judge - will be responsible for reviewing the reasonableness of specific decisions by the Minister of Public Safety related to CSIS' new authorities.

Threat Reduction Measures

The objective of the legislated amendments related to threat reduction is to more clearly define the current threat reduction mandate by clarifying what type of measures can be authorized by judicial warrants, ensuring compliance with the Charter.

Proposed amendments would:

• Enhance Charter compliance by including new safeguards, accountability measures and requirements that enhance transparency;
• Establish a list of distinct measures that can be authorized under warrant to address threats in the current environment; and,
• Require CSIS to seek a warrant for any threat reduction measure that would "limit" a Charter-protected right or freedom, ensuring that a judge is satisfied the measure complies with the Charter.

Additional safeguards, oversight and reporting requirements are also introduced to ensure robust accountability measures are in place.

Data Analytics

The acquisition of large volumes of information for analysis where relevant to an agency's mandate has become an indispensable tool in intelligence work. Clear authority is needed for CSIS to undertake data analytics with robust safeguards to protect Canadian privacy.

The objective of the legislative amendments related to data analytics is to modernize the CSIS Act, ensuring transparent legal authorities in support of existing intelligence collection and data analytics programmes. These amendments include judicial oversight, where appropriate, and significant enhancements of review and accountability measures, as well as review by the proposed Intelligence Commissioner, and the National Security and Intelligence Review Agency.

The framework sets out three types of datasets: Canadian, foreign, and publicly available, setting clear limits on what personal information CSIS is able to collect, retain, and use. While this enables CSIS to collect non threat-related datasets, any collection must be relevant to CSIS duties and functions, including investigating threats to the security of Canada.

Authorization Regime

In order to gain valuable intelligence to protect Canada and Canadians, CSIS officials, or those acting at their direction, must have close access to subjects of investigation involved in a range of potentially unlawful activities. For example, the very act of providing direction to a human source operating covertly within a suspected terrorist entity could potentially engage terrorism offences in the Criminal Code.

Proposed amendments would:

• Provide an exemption for offences that may be triggered by establishing or maintaining a covert identity, modeled on exemptions that currently apply to law enforcement.
• Establish in law an authorization regime for otherwise unlawful activities in the context of security intelligence investigations, modeled on one that already exists in the Criminal Code for law enforcement officers.
• Ensure robust accountability by clearly articulating reporting and review requirements.

For example, the proposed Intelligence Commissioner would provide independent review of the Minister of Public Safety's decisions, and approve classes of acts or omissions that can be undertaken by CSIS pursuant to this authorization regime. The proposed NSIRA will also be notified of all activities undertaken under this regime, with a new authority to report activity it deems to be unlawful directly to the Attorney General of Canada.