Intelligence Commissioner Act

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Sections103

• 1Short title

  This Act may be cited as the Intelligence Commissioner Act.

• 2Definition

  In this Act, Commissioner means the Intelligence Commissioner appointed under subsection 4(1).

• 3Order in council

  The Governor in Council may, by order, designate a federal minister as the Minister responsible for this Act.

• 4Appointment
• 4(1)

  The Governor in Council, on the recommendation of the Prime Minister, is to appoint a retired judge of a superior court as the Intelligence Commissioner, to hold office during good behaviour for a term of not more than five years.

• 4(2)Reappointment

  A person appointed to be Commissioner is eligible to be reappointed for one additional term of not more than five years.

• 4(3)Part-time

  The Commissioner is to perform his or her duties and functions on a part-time basis.

• 4(4)Remuneration

  The Commissioner is to be paid the remuneration that may be fixed by the Governor in Council.

• 4(5)Travel and living expenses

  The Commissioner is entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred in the exercise of his or her powers and the performance of his or her duties and functions under this or any other Act of Parliament, while absent from his or her ordinary place of residence.

• 4(6)Deemed employment

  The Commissioner is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of any regulations made under section 9 of the Aeronautics Act.

• 4(7)Acting Commissioner

  In the event of the Commissioner’s absence or incapacity, or if that office is vacant, the Governor in Council is to appoint a retired judge of a superior court to act as Commissioner and, while acting as Commissioner, that person has all the Commissioner’s powers, duties and functions under this or any other Act of Parliament.

• 5Rank of deputy head

  The Commissioner has the rank and all the powers of a deputy head of a department and has control and management of his or her office and all matters connected with it.

• 6Personnel
• 6(1)

  The Commissioner has exclusive authority to

• 6(1)(a)

  appoint or lay off employees, revoke their appointment or terminate their employment; and

• 6(1)(b)

  establish standards, procedures and processes governing staffing, including governing the appointment of employees, lay-off of employees, revocation of their appointment or termination of their employment otherwise than for cause.

• 6(2)Right of employer

  Nothing in the Federal Public Sector Labour Relations Act is to be construed so as to affect the Commissioner’s right or authority to deal with the matters referred to in subsection (1).

• 6(3)Political activities

  Part 7 of the Public Service Employment Act applies to the Commissioner and to his or her employees. For the purposes of that Part, the Commissioner is deemed to be a deputy head, and his or her employees are deemed to be employees, as those terms are defined in subsection 2(1) of that Act.

• 7Powers of Commissioner

  In the exercise of his or her authority under subsection 6(1), the Commissioner may

• 7(a)

  determine his or her human resources requirements and provide for the allocation and effective utilization of human resources;

• 7(b)

  provide for the classification of positions and employees;

• 7(c)

  after consultation with the President of the Treasury Board, determine and regulate the pay to which employees are entitled for services rendered, the hours of work and leave of the employees and any related matters;

• 7(d)

  after consultation with the President of the Treasury Board, determine and regulate the payments that may be made to employees by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment;

• 7(e)

  determine employees’ learning, training and development requirements and fix the terms on which the learning, training and development may be carried out;

• 7(f)

  provide for the awards that may be made to employees for outstanding performance of their duties, for other meritorious achievement in relation to their duties or for inventions or practical suggestions for improvements;

• 7(g)

  establish standards of discipline and set penalties, including termination of employment, suspension, demotion to a position at a lower maximum rate of pay and financial penalties;

• 7(h)

  provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct;

• 7(i)

  establish policies respecting the exercise of the powers granted by this section; and

• 7(j)

  provide for any other matters, including terms and conditions of employment not otherwise specifically provided for in this section, that the Commissioner considers necessary for effective human resources management.

• 8Negotiation of collective agreements

  Before entering into collective bargaining with the bargaining agent for a bargaining unit composed of his or her employees, the Commissioner must have his or her negotiating mandate approved by the President of the Treasury Board.

• 9Technical assistance

  The Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge to advise and assist the Commissioner in the exercise of his or her powers and the performance of his or her duties and functions under this or any other Act of Parliament and, with the approval of Treasury Board, may fix and pay the remuneration and expenses of those persons.

• 10Oath or solemn affirmation
• 10(1)

  The Commissioner must, before commencing the duties and functions of office, take the following oath or make the following solemn affirmation:

• 10(2)Security clearance

  Every employee of the Commissioner and every person whose services are engaged under section 9 must maintain the security clearance required by the Government of Canada.

• 10(3)Security requirements

  The Commissioner and every person referred to in subsection (2) must follow established procedures or practices, including any requirement found in a Treasury Board policy, guideline or directive, for the secure handling, storage, transportation and transmission of information or documents.

• 11Disclosure limited

  The Commissioner, a former Commissioner, any current or former employee and any person whose services are or were engaged under section 9 may disclose information that they obtained, or to which they had access, in the course of exercising their powers or performing their duties and functions under this or any other Act of Parliament only for the purpose of exercising those powers or performing those duties and functions or as required by any other law.

• 12Review and approval

  The Commissioner is responsible, as set out in sections 13 to 20, for

• 12(a)

  reviewing the conclusions on the basis of which certain authorizations are issued or amended, and certain determinations are made, under the Communications Security Establishment Act and the Canadian Security Intelligence Service Act; and

• 12(b)

  if those conclusions are reasonable, approving those authorizations, amendments and determinations.

• 13Foreign Intelligence Authorization

  The Commissioner must review whether the conclusions — made under subsections 34(1) and (2) of the Communications Security Establishment Act and on the basis of which a Foreign Intelligence Authorization was issued under subsection 26(1) of that Act — are reasonable.

• 14Cybersecurity Authorization

  The Commissioner must review whether the conclusions — made under subsections 34(1) and (3) of the Communications Security Establishment Act and on the basis of which a Cybersecurity Authorization was issued under subsection 27(1) or (2) of that Act — are reasonable.

• 15Amended Authorization

  The Commissioner must review whether the conclusions — made under paragraph 39(2)(a) of the Communications Security Establishment Act and on the basis of which an authorization referred to in section 13 is amended, or made under paragraph 39(2)(b) of that Act and on the basis of which an authorization referred to in section 14 is amended — are reasonable.

• 16Classes of Canadian datasets

  The Commissioner must review whether the conclusions — made under subsection 11.03(2) of the Canadian Security Intelligence Service Act and on the basis of which a class of Canadian datasets is determined under subsection 11.03(1) of that Act — are reasonable.

• 17Retention of foreign datasets

  The Commissioner must review whether the conclusions — made under subsection 11.17(1) of the Canadian Security Intelligence Service Act and on the basis of which the retention of a foreign dataset was authorized — are reasonable.

• 18Query or exploitation of dataset in exigent circumstances

  The Commissioner must review whether the conclusions — made under subsection 11.22(1) of the Canadian Security Intelligence Service Act and on the basis of which a query or exploitation of a dataset in exigent circumstances was authorized — are reasonable.

• 19Classes of acts or omissions

  The Commissioner must review whether the conclusions — made under subsection 20.1(3) of the Canadian Security Intelligence Service Act and on the basis of which a class of acts or omissions is determined — are reasonable.

• 20Commissioner’s decision
• 20(1)

  After conducting a review under any of sections 13 to 16, 18 and 19, the Commissioner, in a written decision,

• 20(1)(a)

  must approve the authorization, amendment or determination if he or she is satisfied that the conclusions at issue are reasonable, and must set out his or her reasons for doing so; or

• 20(1)(b)

  must not approve the authorization, amendment or determination if he or she is not so satisfied, and must set out his or her reasons for doing so.

• 20(2)Foreign datasets

  After conducting a review under section 17, the Commissioner, in a written decision,

• 20(2)(a)

  must approve the authorization if he or she is satisfied that the conclusions at issue are reasonable, and must set out his or her reasons for doing so;

• 20(2)(b)

  must approve the authorization with conditions — respecting the querying or exploitation of the foreign dataset or the retention or destruction of the dataset or of a portion of it — and provide reasons for doing so, if he or she is satisfied that those conclusions are reasonable once the conditions are attached; or

• 20(2)(c)

  must not approve the authorization in any other case and must set out his or her reasons for doing so.

• 20(3)Time limit

  The Commissioner must provide the decision to the person whose conclusions are being reviewed

• 20(3)(a)

  as soon as feasible, in the case of an authorization referred to in section 18; or

• 20(3)(b)

  within 30 days after the day on which the Commissioner receives notice of the authorization, amendment or determination, or within any other period that may be agreed on by the Commissioner and the person, in any other case.

• 20(4)For greater certainty

  For greater certainty, a decision of the Commissioner is not a statutory instrument within the meaning of the Statutory Instruments Act.

• 21Decision provided to Review Agency

  The Commissioner must provide a copy of every decision made by him or her under section 20 to the National Security and Intelligence Review Agency for the purpose of assisting that Agency in fulfilling its mandate under paragraphs 8(1)(a) to (c) of the National Security and Intelligence Review Agency Act.

• 22Report to Prime Minister
• 22(1)

  The Commissioner must, each calendar year, submit to the Prime Minister a report with respect to the Commissioner’s activities during the previous calendar year. The report must include statistics, that the Commissioner considers appropriate, relating to the authorizations, amendments and determinations that were approved and not approved.

• 22(2)Protection of confidential information

  The Commissioner must consult with the Director of the Canadian Security Intelligence Service and the Chief of the Communications Security Establishment in preparing the report in order to ensure that it does not contain information the disclosure of which would be injurious to national security, national defence or international relations or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

• 22(3)Tabling

  The Prime Minister must cause to be laid before each House of Parliament, on any of the first 15 days on which that House is sitting after a report is submitted under subsection (1), a copy of the report.

• 23Provision of information to Commissioner
• 23(1)

  Despite any other Act of Parliament and subject to section 26, the person whose conclusions are being reviewed by the Commissioner under any of sections 13 to 19 must, for the purposes of the Commissioner’s review, provide the Commissioner with all information that was before the person in issuing or amending the authorization or making the determination at issue, including information that is subject to any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

• 23(2)No waiver

  For greater certainty, the disclosure to the Commissioner under this section of any information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege does not constitute a waiver of those privileges or that secrecy.

• 24Entitlement to reports

  The Commissioner is entitled to receive a copy of the following reports, or of a part of the reports, if the report or part in question relates to the Commissioner’s powers, duties or functions:

• 24(a)

  a special report submitted by the National Security and Intelligence Committee of Parliamentarians under subsection 21(2) of the National Security and Intelligence Committee of Parliamentarians Act; and

• 24(b)

  a report submitted by the National Security and Intelligence Review Agency under subsection 32(1) or 33(1) or section 34 or 35 of the National Security and Intelligence Review Agency Act.

• 25Disclosure of information to Commissioner

  Despite any other Act of Parliament and any privilege under the law of evidence and subject to section 26, the following persons or bodies may — for the purpose of assisting the Commissioner in the exercise of his or her powers and the performance of his or her duties and functions — disclose to the Commissioner any information that is not directly related to a specific review under any of sections 13 to 19:

• 25(a)

  the Minister of Public Safety and Emergency Preparedness;

• 25(b)

  the Minister, as defined in section 2 of the Communications Security Establishment Act;

• 25(c)

  the Canadian Security Intelligence Service; and

• 25(d)

  the Communications Security Establishment.

• 26No entitlement

  The Commissioner is not entitled to have access to information that is a confidence of the Queen’s Privy Council for Canada the disclosure of which could be refused under section 39 of the Canada Evidence Act.

• 51Definitions

  The following definitions apply in sections 52 to 59.

• [p76]

  former Commissioner means the Commissioner of the Communications Security Establishment appointed under subsection 273.63(1) of the National Defence Act, as it read immediately before the coming into force of section 68. (ancien commissaire)

• [p77]

  new Commissioner means the Intelligence Commissioner under the Intelligence Commissioner Act. (nouveau commissaire)

• 52Former Commissioner

  The person occupying the position of the former Commissioner immediately before the day on which this section comes into force is, on that day and for the remainder of the term for which he or she was appointed to that position, to become the new Commissioner as if he or she had been appointed under subsection 4(1) of the Intelligence Commissioner Act.

• 53Status continued
• (1)

  Nothing in this Act is to be construed as affecting the status of a person who, immediately before the day on which this section comes into force, occupied a position with the office of the former Commissioner, except that the person is to occupy their position in the office of the new Commissioner on that day.

• (2)For greater certainty

  For greater certainty, a person’s status includes whether or not they occupy a managerial or confidential position.

• 54Powers, duties and functions

  A person referred to in section 53 who was authorized, immediately before the day on which that section comes into force, by the former Commissioner to exercise certain powers or perform certain duties and functions retains the authority to exercise those powers and perform those duties and functions in the office of the new Commissioner.

• 55Appropriations

  Any money that is appropriated by an Act of Parliament, for the fiscal year in which this section comes into force, to defray any expenditure of the office of the former Commissioner and that, on the day on which this section comes into force, is unexpended is deemed, on that day, to be an amount appropriated to defray any expenditure of the office of the new Commissioner.

• 56Rights, property and obligations

  Subject to section 15, all rights and property of the office of the former Commissioner and of Her Majesty in right of Canada that are under the administration and control of the office of the former Commissioner and all obligations of the office of the former Commissioner are transferred to the office of the new Commissioner.

• 57Contracts
• (1) #86

  A contract respecting the provision of materiel or services to the office of the former Commissioner that was entered into by that Commissioner is deemed to have been entered into by the new Commissioner.

• (2) #87References

  Unless the context otherwise requires, every reference to the former Commissioner in a contract referred to in subsection (1) is to be read as a reference to the new Commissioner.

• 58Commencement of proceedings
• (1) #89

  Any action, suit or other legal or administrative proceeding in respect of an obligation or liability incurred by the former Commissioner, other than one relating to a complaint or a review before him or her, may be brought against the new Commissioner in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the former Commissioner.

• (2) #90Pending proceedings

  Any action, suit or other legal or administrative proceeding to which the former Commissioner is a party, other than one relating to a complaint or a review before him or her, and that is pending immediately before the day on which this section comes into force may be continued by or against the new Commissioner in the same manner and to the same extent as it could have been continued by or against the former Commissioner.

• 59No compensation

  Despite the provisions of any contract, agreement or order, the person appointed to hold office as the former Commissioner has no right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of section 68.

• 82References
• (1) #93

  A reference to the former department in any of the following is deemed to be a reference to the new department:

• (a)
• (g)

  the Intelligence Commissioner Act.

• (b)
• (c)
• (d)
• (e)
• (f)
• (1.1)Other references
• (2) #102Deputy head