Order Fixing August 1, 2019 as the Day on which Part 3 of that Act Comes into Force: SI/2019-70
Canada Gazette, Part II, Volume 153, Number 15
Registration
SI/2019-70 July 24, 2019
NATIONAL SECURITY ACT, 2017
Order Fixing August 1, 2019 as the Day on which Part 3 of that Act Comes into Force
P.C. 2019-1091 July 12, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of National Defence, pursuant to section 170 of the National Security Act, 2017, chapter 13 of the Statutes of Canada, 2019, fixes August 1, 2019 as the day on which Part 3 of that Act comes into force, other than sections 83, 90 and 91, which came into force on assent.
EXPLANATORY NOTE
(This note is not part of the Order.)
Proposal
Pursuant to section 170 of the National Security Act, 2017 (the Act), this Order fixes the coming-into-force date of Part 3 of that Act as August 1, 2019.
Objective
This Order brings into force the Communications Security Establishment Act and coordinating amendments to the National Defence Act, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the Security of Canada Information Sharing Act. This Order brings these legislative amendments into force on August 1, 2019.
Background
The National Security Act, 2017 received royal assent on June 21, 2019.
Part 3 of the Act is the Communications Security Establishment Act, which creates standalone legislation for the Communications Security Establishment (CSE).
The CSE is Canada’s national cryptologic agency and provides the Government of Canada with information technology security (IT security) and foreign signals intelligence services. The CSE also provides technical and operational assistance to federal law enforcement and security agencies.
The Communications Security Establishment Act is required, as the CSE’s authorities have not been updated since they were first enshrined in legislation in 2001 through amendments to the National Defence Act. In the intervening 18 years, the world has experienced considerable advances in technology, which have had a significant impact on the CSE’s operating environment, such as its ability to collect foreign signals intelligence and to secure the information of the systems of importance to the Government of Canada. The Communications Security Establishment Act will enable the CSE to work more effectively and proactively to protect Canada and Canadians.
In addition, standalone legislation separate from the National Defence Act is needed to reflect the CSE’s current place in government. In 2011, the CSE became a separate agency of the Government of Canada, with the Chief of the CSE as deputy head reporting directly to the Minister of National Defence. As such, Bill C-59 would repeal the CSE’s current authorities in the National Defence Act and establish separate legislation for the CSE.
Specifically, the Communications Security Establishment Act will
- maintain the CSE’s ability to collect foreign signals intelligence by authorizing the CSE to use advanced online techniques to collect intelligence in support of government priorities;
- authorize the CSE, upon request, to deploy its cybersecurity tools on non-government of Canada networks to help protect them from cyber threats, and remove legal barriers on sharing cyber threat information and mitigation advice;
- explicitly authorize the CSE to provide assistance to the Department of National Defence (DND) and the Canadian Armed Forces (CAF), including with active cyber operations for government-authorized military missions; and
- authorize the CSE to undertake foreign cyber operations in support of broader government priorities.
The Communications Security Establishment Act also responds to calls from successive CSE commissioners (the review body that currently oversees the activities of the CSE) to clarify ambiguities in the CSE’s current legislation and increase transparency. Under the legislation, the CSE’s accountability framework would evolve to enhance oversight and review, with the creation of two new bodies: the National Security and Intelligence Review Agency (NSIRA) [Part 1 of the National Security Act, 2017] and the Intelligence Commissioner (IC) [Part 2 of the National Security Act, 2017].
The NSIRA would review the CSE’s activities for lawfulness and to ensure that the CSE’s activities are reasonable, necessary, and compliant with ministerial direction. In addition, the NSIRA would serve as the new review body for any complaints against the CSE.
The IC would have a mandate to review and decide whether to approve foreign intelligence and cybersecurity authorizations issued by the Minister of National Defence. The approval of the IC would be required for the authorizations to come into effect. Given the nature of the IC’s mandate, the position must be filled by a retired judge of a superior court.
Implications
The Order brings into force standalone legislation for the CSE. The Minister of National Defence would continue to be the Minister responsible for the CSE and no new financial resources are required to implement this Order.
Consultations
In the fall of 2016, the Government of Canada 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 (former Bill C-51) which received royal assent on June 18, 2015. These consultations generated over 90 000 responses from Canadians, stakeholders and subject-matter experts. The input received during the consultation period guided the development of Bill C-59 (the National Security Act, 2017), which constitutes a comprehensive review of Canada’s national security framework and proposed a number of measures that would strengthen Canada’s ability to address new threats and safeguard rights and freedoms.
Contact
Scott Millar
Deputy Chief
Policy and Communications
Communications Security Establishment
1929 Ogilvie Road
Ottawa, Ontario
K1J 0B9
Telephone: 613‑949‑2522