Backgrounder – The National Security and Intelligence Review Agency
The NSIRA Act received royal assent as part of Bill C-59 on June 21, 2019. The Act, which came into force on July 12, 2019, establishes a new federal entity, the National Security and Intelligence Review Agency (NSIRA).
Expanded Review Mandate
The NSIRA has a statutory mandate to review the activities of the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment (CSE), as well as the national security and intelligence activities of all other federal departments and agencies. This includes, but is not limited to, the national security and intelligence activities of the Royal Canadian Mounted Police (RCMP), the Canada Border Services Agency (CBSA), the Department of National Defence (DND), Global Affairs Canada (GAC), and the Department of Justice.
To fulfill its review mandate, the NSIRA has unfettered access to classified information. This includes any and all information held by, or under the control of, departments and agencies, including information subject to a legal privilege. The NSIRA alone determines which information is relevant to the conduct of its reviews. The sole exception to the NSIRA’s right of access is information considered to be a Cabinet confidence.
In carrying out reviews, the NSIRA may make any findings and recommendations it considers appropriate. In accordance with the NSIRA Act, however, it will pay particular attention to whether Government activities are lawful and comply with ministerial direction, and to whether the activities are reasonable and necessary.
Expanded Complaints Mandate
The NSIRA inherits the complaints investigation functions of the Security Intelligence Review Committee (SIRC), and gains several new roles. SIRC was responsible for hearing public complaints regarding the actions of CSIS. It was also responsible for complaints related to the Government of Canada security clearance process, as well as specific matters and reports referred under the Citizenship Act and the Canadian Human Rights Act.
The NSIRA will continue to exercise these functions, but it will also hear public complaints regarding the CSE as well as certain complaints regarding the RCMP. With regard to RCMP complaints, the Civilian Review and Complaints Commission (CRCC) will continue to receive all complaints from the public. When the CRCC determines that a complaint is closely related to national security, it will refer it to the NSIRA.
The NSIRA replaces SIRC, which reviewed CSIS. It also replaces the Office of the CSE Commissioner (OCSEC), which reviewed the CSE. The NSIRA is also assuming responsibility for reviewing the national security and intelligence-related activities of the RCMP from the CRCC. The CRCC will continue to review all other activities of the RCMP.
The NSIRA Act addresses shortcomings in the national security accountability framework identified by Justice O’Connor in the 2006 report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, and subsequently by many others. Prior to Bill C-59, SIRC, OCSEC and the CRCC each focussed on reviewing one specific agency, but they lacked the statutory authority to review activities beyond their agency of focus in order to obtain a complete picture of cross-cutting activities. They also could not collaborate or share classified information with other expert national security review bodies. The NSIRA, by contrast, will be able to review all national security and intelligence activities across the Government of Canada in an integrated manner.
Leadership and Personnel
The NSIRA will be led by up to seven members, eminent Canadians appointed by the Governor in Council on the recommendation of the Prime Minister after consultation with parliamentary leaders. From amongst the NSIRA members, the Governor in Council will also designate a Chair. SIRC’s current four members will continue in office as members of the NSIRA for the remainder of the terms for which they were appointed, and are eligible for reappointment to further terms as per the NSIRA Act.
NSIRA members will be supported by a secretariat. At the outset, the personnel of the SIRC secretariat will form the nucleus of the NSIRA secretariat. The NSIRA has received additional funding in order to carry out its expanded mandate, however. In several years, once fully staffed, the NSIRA will be supported by approximately 100 staff, comprising mainly researchers and lawyers.
The NSIRA will report its findings and recommendations on an annual basis to Parliament. The NSIRA’s first annual public report will be tabled in 2020. The NSIRA may also report to Parliament more frequently should urgent or important matters arise. The NSIRA is also required to produce an annual report for Parliament on the disclosure of information under the Security of Canada Information Disclosure Act.
Of note, the NSIRA is obligated to report Government activities that may be unlawful to the relevant Minister. The Minister must then pass this information to the Attorney General, Canada’s chief law enforcement officer, for resolution.
The NSIRA will also produce a number of classified reports. For each review it conducts, the relevant Minister will receive a classified report. Unclassified summaries of these reports will appear in the annual public report to Parliament. The NSIRA must also produce annual classified reports for the Ministers of Public Safety and National Defence on the activities of CSIS and the CSE, respectively. In this way, the NSIRA not only strengthens accountability to the public, but also supports departmental accountability to Ministers.
The NSIRA is an independent body. NSIRA members formulate their findings and recommendations without seeking the approval of the Government. The NSIRA also retains the final say regarding the contents of its public reports, although it must consult with departments and agencies to avoid releasing information that would be injurious to Canada.
Bill C-59 includes several provisions authorizing collaboration with, and the sharing of information between, the NSIRA and other accountability bodies, including the CRCC, the Office of the Intelligence Commissioner, the Office of the Privacy Commissioner, and the recently created National Security and Intelligence Committee of Parliamentarians (NSICOP).
The NSICOP has a mandate to review the legislative, regulatory, policy, administrative and financial framework for national security and intelligence in Canada, as well as departmental activities related to national security and intelligence. NSICOP reviews will tend to be more strategic than those of the NSIRA, which will undertake detailed reviews of specific activities with a strong emphasis on legal compliance. In practice, the two review bodies will complement each other and provide Canadians with comprehensive and multi-faceted scrutiny of the Government’s secret activities. The NSIRA and the NSICOP can exchange classified information, and are required by statute to cooperate in order to avoid unnecessary duplication of effort.
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