Speaking of reviews
The time is coming around for NSIRA and NSICOP and the legal requirements for Parliamentary review have been bungled
Its good Parliamentary practice to submit new legislation to periodic review, especially when government takes a step into the unknown.
Between 2017 and 2019 the Government of Canada passed legislation that revolutionized the conduct of intelligence review. Twin pieces of statute marked the most profound change in the Canadian review system since the original creation of an independent review body for the Canadian Security Intelligence Service back in 1984.
In 2017, Parliament passed Bill C-22, which established the National Security and Intelligence Committee of Parliamentarians (NSICOP).
https://laws-lois.justice.gc.ca/PDF/N-16.6.pdf
The establishment of NSICOP allowed, for the first time, security-cleared politicians appointed to the Committee to scrutinize classified information about Canada’s intelligence practices and report on them. Since 2017, NSICOP has faced growing pains, adversity, including the impact of COVID-19 on its conduct, and political turmoil, stemming from a decision by the Conservative party to withdraw its members from the Committee—a decision since rescinded.
NSICOP’s founding legislation provided for a “comprehensive” review to be conducted five years after the date on which the Act came into force. That date was October 6, 2017. The math would indicate that a review of C-22 should have begun in the Fall of 2022. It didn't.
And this is where things get complicated. Bill C-59, the National Security Act, which created the other two elements of the new review system, the National Security and Intelligence Review Agency and the Intelligence Commissioner (in reality an oversight body) has its own review provisions, and they interlock with those of Bill C-22.
https://www.parl.ca/Content/Bills/421/Government/C-59/C-59_4/C-59_4.PDF
C-59’s “comprehensive review” is meant to be undertaken in the fourth year after the legislation came into force—so effectively the Fall of 2023 (June 2019 plus 4 years plus the Parliamentary summer recess).
But there is also a provision that provides for C-22 and C-59 legislation to be reviewed together, by the same Parliamentary committee. This is meant to happen (the drafting language is convoluted) if C-59 came into force in the year following C-22 coming into force.
Bear with me on this. Generally, legislation “comes into force” when it receives royal assent. But portions of legislation can also come into force on a delayed timetable through Orders in Council.
See Craig Forcese on this: https://www.intrepidpodcast.com/blog/2019/6/6/chain-reaction-bill-c-59s-complicated-coming-into-force-rules
C-22 legislation came into force through an Order in Council on October 18, 2017.
https://canadagazette.gc.ca/rp-pr/p2/2017/2017-10-18/html/si-tr63-eng.html
Specific portions of C-59 came into force on July 12, 2019 through an Order in Council. That Order in Council does not make mention of s168 of C-59, which contains the provisions for the conduct of a review. The default assumption has to be that the review provisions of C-59 came into force when the legislation received royal assent on June 21, 2019.
https://gazette.gc.ca/rp-pr/p2/2019/2019-07-24/html/si-tr71-eng.html
Meaning? The clever drafters of C-59, which included the National Security and Intelligence Review Agency Act (as Part 1) and the Intelligence Commissioner Act (as Part 2) , foresaw a likely circumstance in which C-59 would be passed within a year of C-22. So, for efficiency’s sake, they amended the review provisions of C-22 to allow for a joint review of both pieces of legislation on a more extended timetable—effectively delaying the required review of C-22 by one year to bring it into line. Except C-59 didn't come into force within a year of C-22, because of delayed proceedings in Parliament. So two years separate when these two bills became law.
In effect, the review provisions of C-22 have been stretched to six years after passage of the legislation, and bundled together with a review of C-59, even though this doesn’t accord with the law as set out either in C-22 or in C-59.
Minor ouch? Bit of legal forgetfulness? Not really. The outcome is that a Parliamentary study of all elements of new review system will be mashed together with a “comprehensive review” of all elements of C-59. The National Security Act (C-59) contained a grand total of nine parts (Part 9 being the provisions for review). The other parts include the following:
Part 1, The National Security and Intelligence Review Agency Act
Part 1.1 The Avoiding Complicity in Mistreatment by Foreign Entities Act
Part 2, The Intelligence Commission Act
Part 3, The Communications Security Act (a big deal, by the way)
Part 4, amendments to the CSIS Act
Part 5, amendments to the Security of Canada Information Sharing Act (renamed the Security of Canadian Information Disclosure Act—don’t ask…)
Part 6, amendments to the Secure Air Travel Act
Part 7, amendments to the Criminal Code
Part 8, amendments to the Youth Justice Act.
Sorry if your eyes are glazing over. I list these Parts to make the obvious point that a comprehensive review of Bill C-59 will be, on its own, a massive undertaking with lots of different areas for potential Parliamentary focus. The specifics of NSIRA, NSICOP and the Intelligence Commissioner will likely not get the attention they deserve. That is a shame for the first-ever review of a revolutionized review system.
There is only one saving grace to this outcome, but it is not very robust. The directions provided in C-59 for the review undertaking (see s168,1.1) specify that it should include the “interaction” of CSIS, the RCMP and CSE (Communications Security establishment) with NSIRA, the Intelligence Commissioner and NSICOP. But “interaction” may well come to be a codeword for the burden of review on our operational national security and intelligence agencies. The “interaction” of other elements of the national security and intelligence system (think DND or CBSA or GAC) with the review bodies get no mention.
Bottom line: overly clever legislative drafting, and one eye shut to the actual legal time-lines requirement for review of C-22 and the work of the National Security and Intelligence Committee of Parliamentarians has left a mess in which the once-in-a-lifetime opportunity to review the new architecture of national security and intelligence review in its totality has been undermined, perhaps fatally.