Countering Foreign Interference Act (S.C. 2024, c. 16)
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Assented to 2024-06-20
PART 1R.S., c. C-23Canadian Security Intelligence Service Act (continued)
Amendments to the Act (continued)
21 Subsections 11.15(3) to (5) of the Act are replaced by the following:
Marginal note:Destruction — absence of new application
(3) If the Service does not request the Minister’s approval under section 11.12 to make a new application for a judicial authorization to retain a Canadian dataset before the period of the judicial authorization given in respect of that dataset expires, the Service shall destroy the dataset within 30 days after the expiry of that period.
Marginal note:New application — approval not obtained
(3.1) If the Service requests but does not obtain the Minister’s approval under section 11.12 to make a new application for a judicial authorization for a Canadian dataset in respect of which the period of the judicial authorization has not expired, the Service shall destroy the dataset within 30 days after the later of the day on which the request was rejected by the Minister and the day on which the period of the judicial authorization expires.
Marginal note:New application — approval obtained
(4) If the Service requests and obtains the Minister’s approval under section 11.12 to make a new application for a judicial authorization for a Canadian dataset in respect of which the period of the judicial authorization has not expired, the Service may, subject to subsection (5), retain the dataset until a decision is made in respect of the new application.
Marginal note:Limit
(5) If the period of a judicial authorization expires, in the circumstances under subsection (3.1) or (4), the Service shall neither query nor exploit the dataset until and unless a new authorization has been issued for the dataset.
22 (1) Paragraph 11.17(1)(b) of the Act is replaced by the following:
(b) that the retention of the dataset is likely to assist the Service in the performance of its duties and functions under section 12, 12.1, 15 or 16; and
(2) Subsection 11.17(3) of the Act is replaced by the following:
Marginal note:Disclosure of dataset
(2.1) The authorization shall also establish any terms and conditions that the Minister or designated person considers necessary respecting the disclosure of the dataset by the Service.
Marginal note:Non-application
(2.2) Section 19 does not apply to the disclosure of the dataset.
Marginal note:Maximum period of authorization
(3) The authorization is valid for a period of not more than 10 years from the date on which the Commissioner approves it under the Intelligence Commissioner Act.
23 Subsections 11.2(2) and (3) of the Act are replaced by the following:
Marginal note:Dataset subject to judicial authorization — section 12, 12.1 or 15
(2) A designated employee may, to the extent that it is strictly necessary, query or exploit a Canadian dataset that is subject to a judicial authorization issued under section 11.13 to assist the Service in the performance of its duties and functions under section 12, 12.1 or 15.
Marginal note:Dataset subject to approved authorization — section 12, 12.1 or 15
(3) A designated employee may, to the extent that it is strictly necessary, query or exploit a foreign dataset that is the subject of an authorization under section 11.17 that has been approved by the Commissioner under the Intelligence Commissioner Act, to assist the Service in the performance of its duties and functions under section 12, 12.1 or 15.
24 Paragraph 11.21(1)(b) of the Act is replaced by the following:
(b) the retention is strictly necessary to assist the Service in the performance of its duties and functions under section 12.1 or 15; or
25 (1) The portion of subsection 11.22(1) of the Act before subparagraph (b)(ii) is replaced by the following:
Marginal note:Query or exploitation in exigent circumstances
11.22 (1) The Director may authorize a designated employee to query or exploit a Canadian dataset that is not the subject of a valid judicial authorization issued under section 11.13 or a foreign dataset that is not the subject of a valid authorization under section 11.17 that has been approved by the Commissioner under the Intelligence Commissioner Act, if the Director concludes
(a) that the dataset was collected by the Service under section 11.05; and
(b) that there are exigent circumstances that require a query or exploitation of the dataset
(i) to acquire intelligence for the purpose of preserving the life or safety of any individual, or
(2) Paragraphs 11.22(2)(b) and (c) of the Act are replaced by the following:
(b) a description of the dataset to be queried or exploited; and
(c) the grounds on which the Director concludes that the query or exploitation is likely to produce the intelligence referred to in subparagraph (1)(b)(i) or (ii).
(3) The portion of subsection 11.22(2.1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Retention
(2.1) The Service may retain the results of a query or exploitation performed under subsection (1) if
26 Paragraphs 11.24(3)(b) and (c) of the Act are replaced by the following:
(b) limit access to those datasets to designated employees and take reasonable measures to ensure that any information that they obtained, or to which they had access, is only communicated for the purpose of performing the Service’s duties and functions under this Act;
(c) establish record keeping requirements for those datasets with respect to the rationale for their collection and retention, the details of each query and exploitation, the results of those queries and exploitations, and if the results were retained for the purpose of performing the Service’s duties and functions under section 12, 12.1, 15 or 16; and
27 Paragraph 11.25(c) of the Act is replaced by the following:
(c) in the case of a query or exploitation performed on the basis of exigent circumstances under section 11.22, give the Review Agency a copy of the Director’s authorization under that section and indicate the results of the query or exploitation and any actions taken after obtaining those results.
28 The Act is amended by adding the following after section 11.25:
Threats to the Security of Canada
29 The Act is amended by adding the following after section 12.2:
Security Assessments and Advice
30 The Act is amended by adding the following after section 15:
Assistance and Cooperation
31 Section 16 of the Act is amended by adding the following after subsection (1):
Marginal note:Information or intelligence outside Canada
(1.1) The assistance provided under subsection (1) may include the collection, from within Canada, of information or intelligence that is located outside Canada if the assistance is directed at a person or thing in Canada or at an individual who was in Canada and is temporarily outside Canada.
32 The Act is amended by adding the following after section 17:
Identity of Employees and Human Sources
33 The Act is amended by adding the following after section 18.2:
Disclosure of Information
34 (1) Paragraph 19(2)(a) of the Act is replaced by the following:
(a) where the information may be used in the investigation or prosecution of an alleged contravention of any law of Canada or a province, to any person having jurisdiction to investigate the alleged contravention and to the Attorney General of Canada and the Attorney General of the province in which proceedings in respect of the alleged contravention may be taken;
(2) Paragraph 19(2)(d) of the Act is replaced by the following:
(d) where, in the opinion of the Minister, disclosure of the information to any person or entity is essential in the public interest and that interest clearly outweighs any invasion of privacy that could result from the disclosure, to that person or entity.
(3) Section 19 of the Act is amended by adding the following after subsection (2):
Marginal note:Authorized disclosure — building resiliency against threats
(2.1) For the purpose of building resiliency against threats to the security of Canada, the Service may also disclose information referred to in subsection (1) to any person or entity if all of the following conditions are met:
(a) the information has already been provided to a federal department or agency that performs duties and functions to which the information is relevant;
(b) the information does not contain any personal information, as defined in section 3 of the Privacy Act, of a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or any individual in Canada, other than personal information of the individual to whom the information is disclosed;
(c) the information does not contain the name of a corporation incorporated or continued under the laws of Canada or a province or the name of a Canadian entity, other than the name of the corporation or entity to which the information is disclosed.
35 The Act is amended by adding the following after section 19:
Protection of Employees and Justification
36 Paragraph 20.1(8)(b) of the Act is replaced by the following:
(b) the employee would be justified in committing or directing another person to commit an act or omission that would otherwise constitute an offence.
37 The Act is amended by adding the following before section 21:
Marginal note:Preservation order
20.3 (1) The Director or any employee who is designated by the Director for the purpose may make an application to a judge for a preservation order under this section.
Marginal note:Making of order
(2) Despite any other law but subject to the Statistics Act, the judge may order a person or entity to preserve any information, record or document — regardless of medium or form — or thing that is in their possession or control when they receive the order, if the judge is satisfied by information on oath in Form 1 of Schedule 2 that
(a) there are reasonable grounds to suspect that the information, record, document or thing is in the person or entity’s possession or control and will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16;
(b) the order is necessary to prevent the loss or destruction or ensure the preservation of the information, record, document or thing; and
(c) the Director or an employee who is designated by the Director for the purpose intends to apply or has applied for a production order under section 20.4 or a warrant under section 21 or 22.21 to obtain the information, record, document or thing or, under section 23, to remove a thing.
Marginal note:Form 2
(3) The order is to be made in Form 2 of Schedule 2.
Marginal note:Preservation outside Canada
(4) The order may be made in respect of information, records, documents or things located outside Canada, with any modifications that the circumstances require.
Marginal note:Measures
(5) The judge may include in the order any measure that they consider necessary in the public interest, including to ensure the confidentiality of the order.
Marginal note:Expiry of order
(6) The order expires 90 days after the day on which it is made.
Marginal note:Notification of Minister
(7) The Director shall notify the Minister that an application for an order has been made under this section as soon as feasible after the application is made.
Marginal note:Production order
20.4 (1) The Director or an employee who is designated by the Minister for the purpose may, after having obtained the Minister’s approval, make an application to a judge for a production order under this section.
Marginal note:Making of order
(2) Despite any other law but subject to the Statistics Act, the judge may order a person or entity to produce any information, record or document — regardless of medium or form — that is in their possession or control when they receive the order if the judge is satisfied by information on oath in Form 3 of Schedule 2 that there are reasonable grounds to believe that the information, record or document is in the person or entity’s possession or control and will assist the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16.
Marginal note:Form 4
(3) The order is to be made in Form 4 of Schedule 2.
Marginal note:Production outside Canada
(4) The order may be made in respect of information, records or documents located outside Canada, with any modifications that the circumstances require.
Marginal note:Measures
(5) The judge may include in the order any measure that they consider necessary in the public interest, including to ensure the confidentiality of the order.
Marginal note:Revocation or variation of production order
20.5 (1) Before they produce any information, record or document that they are required to produce under an order made under section 20.4, a person or entity may apply in writing to a judge to revoke or vary the order.
Marginal note:Notice required
(2) The person or entity may make the application only if they give notice of their intention to do so to a judge and to an employee in Form 5 of Schedule 2 within 14 days after the day on which the order is served.
Marginal note:No obligation to produce
(3) The person or entity is not required to produce the information, record or document until a final decision is made with respect to the application.
Marginal note:Revocation or variation of order
(4) The judge may revoke or vary the order if satisfied that
(a) it is unreasonable in the circumstances to require the applicant to produce the information, record or document; or
(b) production of the information, record or document would disclose information that is privileged or otherwise protected from disclosure by law.
Marginal note:Clarification — voluntary preservation or production
20.6 (1) For greater certainty, the Service may request that a person or entity voluntarily preserve any information, record, document or thing, or voluntarily produce any information, record or document to the Service, without needing to obtain a preservation or production order so long as the person or entity is not prohibited by law from preserving or producing the information, record, document or thing, as the case may be, and the Service may collect it under section 12 or 16.
Marginal note:Clarification — other collection authorities
(2) For greater certainty, the fact that a preservation order or production order may be made under section 20.3 or 20.4 does not affect the Service’s authority to collect any information, record, document or thing under any other provision of this Act.
Marginal note:No civil or criminal liability
20.7 No criminal or civil proceedings lie against a person who voluntarily preserves any information, record, document or thing, or voluntarily produces any information, record or document, following a request from the Service in the circumstances described in subsection 20.6(1), or against a person acting on behalf of an entity that receives such a request.
Marginal note:Destruction of preserved elements — preservation order
20.8 (1) A person or entity that is subject to a preservation order made under section 20.3 shall destroy the information, record, document or thing that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record, document or thing under that section as soon as feasible after the order expires, unless they are subject to a new preservation order, a production order made under section 20.4 or a warrant issued under section 21, 22.21 or 23 with respect to the information, record, document or thing, as the case may be.
Marginal note:Destruction of preserved elements — production order
(2) A person or entity that is subject to a production order made under section 20.4 with respect to any information, record or document that they preserved under a preservation order made under section 20.3 shall destroy the information, record or document that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record or document under that section as soon as feasible after the earlier of
(a) the day on which the production order is revoked; and
(b) the day on which the information, record or document, or document prepared for the purpose of preserving the information, record or document, is produced under the production order.
Marginal note:Destruction of preserved elements — warrant
(3) Despite subsections (1) and (2), a person or entity that preserved any information, record, document or thing under a preservation order made under section 20.3 shall destroy the information, record, document or thing that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving the information, record, document or thing under that section when the information, record, document or thing, or document prepared for the purpose of preserving the information, record, document or thing, is obtained under a warrant issued under section 21 or 22.21 or when a thing is removed in accordance with a warrant issued under section 23.
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